Mediation is a process whereby
a trained and qualified mediator will help divorcing couples reach agreement
without having to fight through the courts.
It is regarded by the
Government as better for children and those involved in divorce than a lengthy
court battle. It’s probably also relevant that it’s generally considered
quicker and cheaper than court fights. However, it’s not suitable for everyone.
It cannot be used in cases where there is domestic violence, for example.
The Government think it should
help about 19,000 couples a year reach amicable agreements, but to put that in context,
about 26,000 divorce applications were issued between June and September
2022,although that may have been increased by a change in the law which has
made it easier to get divorced recently.
Mediation has been around and
encouraged by the courts for quite a number of years. But the Government is proposing
to encourage it use further with a combination of carrots and sticks.
The proposed carrots would be
vouchers to part fund mediation costs and more information about it.
The sticks have been reported
as fines. In fact that may be a misreporting because the consultation is not
suggesting that couples should be “fined” for not using mediation. Instead it
is suggesting that the courts should use cost orders to encourage it’s use so
that if, for example, a party unreasonably failed to mediate they could be ordered
to pay the other sides costs and some court fees.
The difficulty with this is
that cost orders have been available in Family proceedings for a long time but
are rarely used. Judges often take the view that if they order one party to pay
the other party’s costs in a family case it can cause further acrimony which is
often harmful to the children. Furthermore, often neither party is in a
financial position to pay a lot of costs without putting the family home or
income to look after the children at risk. And finally, in some family cases
it’s difficult to identify who has been unreasonable as sometimes it’s both
parties and you would end up with a circular order if they were both ordered to
pay each other’s costs.
Those issues are not going to
go away and the Government consultation recognises that ultimately it’s up to
the Judge in each individual case to decide if it’s right that there should be
a costs order. That is what the situation is now, so it’s difficult to see in
practical terms what would change on the ground if the Government’s proposals
were adopted.
What may be of more
significance in the proposals is the idea of increasing the court fee. This is
the fee that the parties must pay to the court to have their case heard. At the
moment the fee does not cover the costs of running the court system so the
proposal is to raise it. That may cause there to be arguments about access to
Justice if the court system is not available to citizens unless they pay
substantial fees. However, it may put people off having court fights, which is
what may be intended. Although even after mediation it is usually necessary to
have any agreed settlement approved by the court.
So, in summary, further changes
will be afoot but the proposal is not to “fine” divorcing couples. What may happen
is a system of financial incentives to encourage them to use mediation to
resolve disputes.
We have lots of useful free guidance on divorce, such as “What you should know about
the divorce process”, “Does the final order in a
divorce sever your financial ties?”, or “Failing to discuss a
pension could leave you out of pocket”. We have lots of free guidance on this
and other legal topics to help keep you informed about how the law might affect
you at search4legal.co.uk/guidance.
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