Divorcing couples to go through mediation before court
23 February 2011
Divorcing couples will be referred to mediation to sort out most disputes before they are allowed to use the courts, the government has announced.
Justice Minister Jonathan Djanogly said mediation was “a quicker, cheaper and more amicable alternative” to the over-worked family courts.
The measures for England and Wales, focused on child custody and financial disputes, come into force on 6 April.
Domestic violence and child protection cases will still go to court.
Mr Djanogly said: “Nearly every time I ask someone if their stressful divorce battle through the courts was worth it, their answer is ‘no’.
“Mediation already helps thousands of legally aided people across England and Wales every year, but I am concerned those funding their own court actions are missing out on the benefits it can bring.
“Now everyone will have the opportunity to see if it could be a better solution than going straight to court.”
The minister told BBC Radio 4’s Today programme statistics suggested that more than two-thirds of couples who took up mediation were “satisfied with the results”.
“It gives people the opportunity to take their own futures in their own hands.”
Under the change, anyone wanting to use the courts will have to undergo a compulsory mediation assessment session first, which could cost some couples up to £140.
If mediation is not a workable option, for example one party refuses to take part in it, the case can proceed to court.
However, the government is proposing to cut legal aid for many separating couples and that means that if they cannot mediate after their compulsory assessment, they will have to pay for legal advice and court representation.
Some lawyers have argued that will amount to a denial of access to justice.
And the Law Society, which represents solicitors in England and Wales, said it questioned whether mediation would always be an appropriate way to decide arguments.
President Linda Lee said: “As a matter of course any lawyer aims for an agreed solution through negotiation because going to court is stressful and expensive. This is not always possible and, in some cases, the court is the only appropriate way of resolving the problems.
“The government is creating a myth that mediation is a panacea in order to justify cuts to legal aid which will take areas such as this, where people desperately need advice out of scope.”
A Ministry of Justice spokesman said the courts should not get involved in varying parental contact days or other minor disputes.
The ministry said 137,000 divorce cases were dealt with in 2009, up by 16%.
The cost per client of mediation is £535, compared with £2,823 for court costs and the National Audit Office also found mediation was quicker – 110 days, compared with 435 days for court cases.
The move does not relate to Scotland or Northern Ireland.
However, a Scottish government spokeswoman said: “In Scotland we encourage the use of mediation in family cases when it is appropriate and safe to do so.
“There is already provision in court rules in Scotland for a sheriff to refer matters relating to parental responsibilities and rights to a mediator.”
Last year David Norgrove, who chairs a Whitehall review into the issue, said there was a “tremendous strain” on the system which was “really intolerable” for the children of divorced parents.
Justice Secretary Kenneth Clarke recently announced plans to scrap civil legal aid for a range of cases.
Mr Djanogly pointed out that the legal aid bill in England and Wales – £2bn a year – was far higher than in most other countries.
He said: “Our proposals aim to radically reform the system and encourage people to take advantage of the most appropriate sources of help, advice or routes to resolution – which will not always involve the expense of lawyers or courts.”
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