Very interesting article in the Guardian on how the changes in the Legal Aid system in the UK has increased the use of Mediation. Since April 2011 separating couples have been legally obliged to undergo assessment to see if their cases can be resolved by mediation. In England from April 2013 legal aid will no longer be available for private family law cases, including child contact arrangements and anything to do with divorce. Wonder how long it takes for this to happen in Ireland in view of the financial pressure the public sector is under.
March 9, 2013
From next month, divorce may get a little less confrontational – and cheaper. Changes to legal aid mean couples who split won’t be funded through the courts, but that could be a good thing, argues mediator Victoria Scott
It is, she says, 15 years since they first met: just good friends for a couple of years, then an item. So the day he finally moves out, they will have been together for 13 years. Not a bad run. But now it’s over. Why? “We don’t share the same ideals or the same values,” Louisa says. “We don’t work the same way planning the future; we don’t want to go on the same holidays. We see the world and life very differently. We don’t share a life, really.”
Sounds clear enough. “Thirteen years ago,” she says, “it was different. I was different. I was needy. I needed a clown, a funny man. He needed a damsel in distress. I don’t regret it. I loved him. Our wedding was an amazing day. We really did intend to be together for the rest of our lives.”
So what happened? “Something changed, in him and in me,” she says. “I became stronger, he became grumpier. He’s quite a difficult person to live with. Opinionated, impatient.”
They tried to split three years ago, but failed. Last April, though, that was it. Louisa (not her real name) moved into the spare room. She went to see a solicitor; she also spoke to a family friend, someone Martin – not his real name either – didn’t like much.
“He just went ballistic,” says Louisa, “I had to promise never to see a lawyer again, never to speak to the family friend. We managed to calm down somehow. We decided I should be the one to stay in the house with our son, Martin should be the one to move out.
“But whenever we tried to discuss anything beyond that, anything practical – how he could move, where to – it just got nowhere. More and more heated, less and less productive. And frustration levels through the roof.”
Louisa saw that they needed a third party, but Martin swore he would never go to a lawyer or before a court: never put his fate in the hands of someone merely crunching numbers, imposing judgments, who didn’t really understand their situation. So they turned to mediation and ended up in Victoria Scott’s consulting room.
Mediation has the wind in its sails. Since April 2011, in a bid to rid an increasingly sclerotic court system in England and Wales of a swelling stream of divorcing parents wrangling for years over the minutiae of contact arrangements and savings accounts, separating couples have been legally obliged to undergo assessment to see if their cases can be resolved by mediation; only cases involving domestic violence or child-protection issues now go straight to court by right.
Scott has been a magistrate for eight years and specialised in family law for five. “The courts should be used to safeguard children, not to sort out every last detail of a divorce,” she says. “I’ve had divorcing couples in front of me who have been arguing in court quite literally for decades.”
Mediation, she says, can be a lot quicker: 110 days on average, against nearly 450 for non-mediated separations. It can also be a great deal cheaper: Ministry of Justice figures suggest the average overall cost of mediation is £535, versus up to £7,000 for litigated cases.
All of this goes some way to explaining why the government is so keen on mediation, ploughing an additional £10m into mediation services this year to bring total annual funding to around £25m.
Changes to the legal aid system in England and Wales are likely to make it even more popular: from 1 April this year, legal aid will no longer be available for private family law cases, including child contact arrangements and anything to do with divorce. So if people want to go to court from now on, they will have to pay the costs or represent themselves. Mediation will become even more attractive.
But there are other reasons why mediation is preferable to court, Scott thinks, “It’s less confrontational. Courts are, by nature, adversarial. And because they are not very enabling or empowering places either, decisions arrived at after mediation can be more sustainable: the parties have ownership of them, they’ve helped make them. They’re not court orders, handed down from on high. That’s a big difference.”
Mediation, Scott says, “provides long-term solutions, especially for children. Couples sort things out for themselves, within the framework of the law, and the outcomes reflect what they need and want. The whole process is somehow more respectful, and also often more amicable.”
Her work is about finding common ground, keeping the channels open: “Taking the emotion out of the communications. Rephrasing. There will always be bitterness, of course. It’s about keeping things moving on.”
The formal process is straightforward. First, there’s an assessment to identify key areas that need sorting out (usually finances and children). That is followed by four or five 90-minute sessions, at two- or three-weekly intervals – “Any longer and the dynamic can change.” Finally, a memorandum of understanding and financial statement that, while not legal documents, can be taken to a solicitor and, if necessary, form the basis of a legal settlement.
Successful mediators, Scott says, must “Fully understand the law on child maintenance, on benefits, tax, pensions, wills, property – the works. You have to know that what’s suggested is legal and sustainable.”
When she started, Scott says, her ambition was “to create an environment that was so supportive, so safe, that people would actually enjoy coming to sessions.” That, she concedes, “was probably a bit naive”.
Now, although she continues to believe that good mediation “can make you feel better about your separation”, she sees the key as “an environment in which both parties feel they have been treated equally and impartially”.
Mediation can be challenging, at times even stressful (“You do feel responsible … “), but it is ultimately “an optimistic thing”, Scott believes. “It’s about communicating opportunities and reality-checking them. And making sure children are properly looked after: I don’t feel evangelical about marriage, but I do about getting the kids sorted.”
So did it work for Louisa and Martin? He, alas, does not really want to talk about the whole thing. He did not “wish to be thinking about [mediation] other than when I’m actually in it”.
Louisa, who is paying for the sessions, cannot speak highly enough of the process, or of Scott. “I have nothing but good to say of it,” she says. “She knows what’s possible and what’s not. She helps us listen to each other and to communicate. If one of us says something nasty, she’ll say, ‘Not helpful’. She’s quite strict.”
Despite Martin’s reluctance, Louisa says Scott has helped the couple “figure out clear pictures for the vital things that we couldn’t even talk about – finances, living arrangements, a parenting plan”.
“It’s been like someone auditing our lives together. We’ve got to-do lists; firm undertakings about what each of us will do, in terms of taking over particular payments, for example, or that Martin will move out on date X, and I have to get a lodger by date Y.
“It feels so supportive to sit with someone who knows all this – it’s like a validation. I don’t think we could ever have got to this point on our own.”
Martin and Louisa will end up having five mediation sessions. The total cost, including the final documents, will probably be around £1,000, Louisa thinks: “It’s quite a lot when you don’t have much, but when you think what lawyers might charge … That doesn’t even bear thinking about.
“But the most precious thing is that she’s made us feel safe; safe in feeling that we are doing things the right way, the best way possible. It’s an unfortunate, painful situation but knowing you’re doing things the right way – especially for your child – is priceless.”
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE