‘Good Life’: Kimye, Courts And The Value Of Mediation 

Published on 06 December, 2022 | Judith Klyne

Anyone who has ever flicked through one of the tabloid ‘papers will understand how the relationships of the rich and (in)famous are something of a staple ingredient on the news and gossip pages.

Furthermore, more than merely providing an insight into how the wealthy and well-known live their lives, such articles have the potential to influence those of readers too.

So, you will forgive me if, as a professional family law mediator, my interest was piqued by an article in recent days about a settlement being reached in the divorce involving one of the most talked about couples in recent decades.

Reality television celebrity Kim Kardashian issued a divorce petition early in February 2021 to bring her seven-year marriage to the musician and entrepreneur Kanye West to an end.

More than the huge amount in child maintenance (£167,000 a month) which he must now provide, the settlement made reference to how they will go about exercising joint legal custody of their four children.

According to news reports, they must consult with each other on issues such as schooling, welfare and religious activities (https://www.belfasttelegraph.co.uk/entertainment/film-tv/news/settlement-agreed-in-kim-kardashian-and-kanye-west-divorce-42184318.html).

If they’re unable to agree, they will have to participate in “mediation for at least three hours”. Should either Ms Kardashian or Mr West fail to do so, the other “shall have sole decision-making power regarding the item(s) then in dispute”.

It’s not necessarily unusual for parties to formalise in a court order their willingness to settle possible future disputes via mediation or any other form of Alternative Dispute Resolution (ADR) before applying to court.

Even so, it is rare that the process has the kind of profile associated with the collapse of a high-profile marriage like this.

I would also suggest that it’s quite timely, given that the British Government and judiciary are trying to ensure that more people recognise the merits of mediation in terms of control, cost and relieving the strain on the Family Court.

Every couple of months, the severity of that strain becomes clear in figures published by the Ministry of Justice (MoJ).

The most recent statistics were issued in October and showed that, between April and June this year, 69,340 new cases began in the Family Court (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2022/family-court-statistics-quarterly-april-to-june-2022#children-act—private-law).

During the same period, the number of cases which were resolved was down 23 per cent on the same quarter in 2021.

Meanwhile – and perhaps unsurprisingly – cases which progress through the courts are taking longer to conclude. Matters relating to divorce lasted almost three months more than in 2021. Children’s cases were, on average, resolved six weeks later than they were last year.

In order to make an application to have an issue heard in court, individuals are required to attend what is known as a Mediation Information and Assessment Meeting, or MIAM for short.

You might think that the opportunity to avoid the stress, expense and delays associated with the court system might find broad appeal.

That much was noted by Sir Andrew McFarlane, President of the Family Division of the High Court, in a speech in September (https://www.judiciary.uk/speech-by-the-president-of-the-family-division-relaunching-family-mediation/).

Mediation, he observed, “has a proven track-record of allowing a proportion of parties to resolve their disputes swiftly and by consent”.

However, further MoJ indicates that it’s not being capitalised upon often enough (https://data.justice.gov.uk/legalaid/legal-aid-mediation).

In fact, the number of MIAMs which were started in the last financial years was 60 per cent down on the figure for 2011-’12.

One reason is that there are individuals who regard the MIAM not as an opportunity but a necessary hurdle to be cleared before airing their differences in court.

The likelihood of matters taking longer to conclude that way is something which concerns Sir Andrew. “Delay”, he has said separately, “is inimical to child welfare” (https://www.judiciary.uk/guidance-and-resources/fact-finding-hearings-and-domestic-abuse-in-private-law-children-proceedings-guidance-for-judges-and-magistrates/).

His concern is one shared by the current Justice Secretary, Dominic Raab, who remarked this June that “mediation protects children, by removing the bitterness of parental disputes from the amplifying effect of a courtroom” (https://www.gov.uk/government/news/mediation-to-help-thousands-more-families-avoid-costly-legal-battles).

Following those comments, the MoJ staged a two-month consultation to determine how best to increase uptake across the entire civil justice system (https://consult.justice.gov.uk/dispute-resolution/increasing-the-use-of-mediation/).

As I wrote on this ‘blog back in July, whilst it is important to ensure that more people are made aware of the very tangible benefits of mediation through MIAMs, contribution to the full mediation process itself should remain voluntary (https://hallbrown.co.uk/mediation-education-and-compulsion/).

The wording of the settlement in the Kim Kardashian and Kanye West case underlines another dimension as to why that should be the case.

I have found that substantial strides – including all the way to agreement – can be made after only a few mediation sessions, whether the issue at heart is to do with finances or childcare arrangements.

It’s worth noting, though, that mediating sensitive problems can be a sensitive process itself. For that reason, it sometimes makes sense to bring sessions to a close on a positive note and allow the following session to be held once those involved have had time to draw breath.

That’s one reason why obliging individuals to participate in sessions lasting a certain length of time – especially if one of them has admitted mental health issues which might result in behaviour not exactly conducive to a constructive discussion – is, I believe, not in people’s best interests.

Having said that, I fully agree with Sir Andrew McFarlane that fresh consideration is required to achieve greater use of mediation.

As he has illustrated, “there is indeed a head of steam building for change in the way that separating parents and former partners can be supported in resolving disputes”.

If the couple jointly known as ‘KimYe’ can act as role models in highlighting how mediation can help achieve that objective, it will be a very positive postscript to a marriage which has seldom been out of the headlines.