Relationship Breakdown is Hard – Mediation Makes it Manageable

Relationship breakdown is hard, however it happens.  For some couples who have not been together that long, the only issue is managing their emotions. The difficulty used to be dividing up the CD’s, but who has CD’s anymore? 

For those couples with children and finances that are combined things can be far more difficult. It is often the emotion that gets in the way, but even where a couple part on good terms the practical arrangements can prove the sticking point. 

Some Statistics:

The most recent data from the Office for National Statistics suggests that 41% of married couples break up before their 25^th wedding anniversary. The percentage of couples marrying is also decreasing and it is known that the rate of relationship breakdown in unmarried couples is higher than those who are married.  

The Ministry of Justice have confirmed that there has been a 77% increase in applications to the court regarding children on specific issues, such as schooling, in the last 10 years. The Ministry of Justice also say that it now takes just under a year for matters regarding children to be concluded, – not much help if the issue is which school should a child go to once they receive offers.  Most family lawyers agree that the court-based family justice system is beyond breaking point. The causes of this, the lack of funding, governmental mismanagement and so on are not for this article but is a rant for another day.  

The question is – what can those couples who are unable to sort out their division of assets or arrangements for children themselves do?  

The answer is, and has been for over 30 years, to mediate. There is surprisingly still a lot of misunderstanding as to what mediation is. It is not about trying to bring the couple back together. It is more of a guided discussion using skilled mediators enabling the couple to discuss and sort out the arrangements that they want to make for their children (such as the time the children will spend with each parent); and/or how the couples’ assets and finances are to be sorted out in a way which both think is relatively fair.  

BBS Law’s consultant, Peter Martin, was one of the first family lawyers in England to train as a mediator back in 1990. His experience over this time has shown how successful mediation can be, even with couples who seem at each other’s throats at the outset. He explains to potential clients, that what mediation hopes to achieve is not “fairness” as they will each have a different idea of what that is. The hope is that they both go away thinking that they have an outcome which whilst not giving them everything they wanted is “OK” and leaves them saying “okay it’s not all I wanted, but I think it is reasonable and I am prepared to go with it”.  

The government have finally woken up to the benefits of mediation. A cynical view would be that they have only done so because they have realised how much money can be saved by not having lengthy court battles.  What is certain is that the individuals concerned save not just tens of thousands of pounds in legal costs, but more importantly often save their relationship as parents.  

Before a couple can commence the court process, they have to undertake what is called a Mediation Information and Assessment Meeting (MIAM). This hurdle was intended to encourage people into mediation.  It did so, but only to a limited extent as it was often seen by individuals and indeed their solicitors as a box ticking exercise with too many exemptions or ways out.  

A recent change in the Family Procedure Rules strengthens the rules around MIAM’s and mediation to provide for both greater flexibility and greater enforcement. If a Judge believes that someone hasn’t taken the MIAM seriously the Judge can pause proceedings and make them go back to an assessment meeting.  By allowing the assessment meeting to take place remotely they have removed the exemption which allowed people to avoid a MIAM if they lived more than 15 miles apart from each other.  

There is also now an expectation that courts will continue to encourage mediation or other non-court dispute resolution (such as arbitration) at every hearing. Most importantly Judges have been given powers to impose costs sanctions on the individual who tries to avoid mediation. It is the sad fact that this is often the person with greater economic power who believes that forcing the weaker party into a situation where they cannot litigate as they cannot afford it, will give them the advantage of an unfair settlement.  

So it seems that the government and the judicial rules committee are finally putting mediation in the place that it should be. It should become the norm for resolving disputes in families. For years it has been called a method of “alternative resolution”. It should be and could be the main method of family dispute resolution, the unsatisfactory “alternative” being the court process.

For more information please contact BBS Law’s Family team.