The Government is keen to encourage all couples who are divorcing to attend Mediation. They consider this better for the couple so that they can avoid the costs, both financial and emotional, of going through the Court system. We even have High Court judges speaking out telling people they should not get divorced at all.
The Government laments the reduction in marriage and the increase in cohabitation. The Government does not make the link that more couples are avoiding the pain of Divorce by avoiding marriage.
The Government has closed, or plans to close, up to 40% of our Courts. Is it not more honest to say to people the State does not have sufficient resource to cope with litigated Divorce rather than present Mediation as a benefit to the couple? A panacea of success and a remedy to the malaise of the bitter, contested divorce.
Mediation is voluntary. To make it compulsory undermines its fundamental ethos. Mediation should be considered, as it is now, but couples should choose whether they wish to proceed.
If Mediation is to be made compulsory then Mediators need to be regulated more thoroughly and there needs to be a better vetting system. It takes 6 years to become a solicitor. After that another 3 before you can supervise others. It takes 3 days to train as a Mediator. You then need to be supervised for a number of hours before you can Mediate alone. Virtually anyone can train as a Mediator. The training providers have a discretion to allow those without a degree to train. Any degree? Any background? The quality of Mediators and their knowledge of family law varies widely.
This Mediation focus reminds me of HIPS. A whole training industry blossomed and made money out of individuals seeking a new career on the back of Government policy. The Government then reversed their policy.
Records need to be kept as to how many Consent Orders are as a result of a Mediated Agreement. Mediators need to have a minimum knowledge of family law greater than the half a day provided on some courses.
Couples need to understand that the Mediator cannot give legal advice and they need to obtain legal advice from their solicitor as they proceed through the process.
Most Mediation referrals come via solicitors. A growing proportion of family law solicitors are also Mediators. Most solicitors I know who also practice as Mediators find the process rewarding. Some have chosen to become full time Mediators.
I believe that Mediation can work, that the quality of the Mediator is paramount and we are looking to expand our Mediation practice and employ another Mediator. If people are unable to Mediate, whether both or one of the couple is against it then Mediation will not work. Unfortunately, Mediation does break down but there are inadequate statistics available to be able to properly analyse its usefulness and growth.