The government's plans to force warring couples to talk fail to take on board the complexity of marital breakdown
The law has a lot to answer for when it comes to divorce. Until judicial divorce was introduced in 1857, ecclesiastical courts presided over marriage breakdowns to the detriment of women: a woman's property became her husband's, and he could lock her up, beat her, and deny her access to her children. A married woman was legally equivalent to lunatics, outlaws and minors.
When divorce did become a judicial matter, it focused heavily on guilt. In the early days, a husband had to prove that his wife was guilty of adultery, and that he was an "innocent" party. A wife had to prove her husband guilty of an aggravated version of the offence ? involving incest, sodomy or desertion, for example ? to obtain a divorce. Even when things were equalised in the 1920s, the emphasis on guilt persisted until the latter half of the 20th century.
It's no surprise, therefore, that divorce law has evolved into perhaps the most acrimonious type of litigation the legal system has known. Even without the law's insistence on guilt ? practically criminalising the parties ? divorce cases offer all the ingredients of a bitter battle: a once loving relationship that has broken down; the most intimate elements of a person's home and family life at stake; and access to potentially unlimited quantities of personal and financial information. Viewed from this angle, divorce law is a perfect storm.
As the judges whose job it is to clear up the damage say frequently, it is these issues that force people into court in the first place. While everyone acknowledges that alternative means of resolving disputes are better for all parties involved ? cheaper and faster and offer far better outcomes for children caught up in the crossfire, they do not always work. Mediation ? one of the most popular out-of-court approaches ? usually relies on some measure of goodwill, some willingness of the parties to provide information, and their ability to sit around a table as equals. In other words, "compulsory mediation" is something of a contradiction.
Yet that's exactly what the government has proposed. Under a protocol agreed between the ministry of justice and the judiciary, divorcing couples will now be required to undergo a compulsory "mediation awareness session", familiarising them with the mediation process and encouraging them to use it as an alternative to going to court.
Under the new rules, the spouse who initiates the case will first go to a professional mediator, who will be required to engage the other party and arrange the session ? either together or individually. If the couple insist on litigating, they will be required to present evidence of their mediation session before their case is accepted by the court.
In support of the new measures the government cites National Audit Office figures that show the average length of time for a mediated case to be completed is 110 days, compared with 435 days for court cases on similar issues; and that where cases are publicly funded, the average cost per client of mediation is �535 compared with �2,823 for cases going to court.
But there are legitimate questions to be asked about whether these new measures will make any difference. There are about 130,000 divorces each year in the UK, and it is already the case that only a small minority of these end up in court. Divorce lawyers, who on the whole say that it is already their practice to encourage mediation, argue that the cases that make up this minority are often the ones that could not be resolved any other way.
There are cases where mediation simply cannot work. The proposals acknowledge this to some extent ? providing exemptions in circumstances of domestic violence or child protection ? in recognition of the fact that parties who have experienced abuse cannot be expected to sit around a table and reach a constructive out-of-court result.
But there are many other circumstances that fall short of this extreme, where mediation may also not be appropriate ? when there is a significant power imbalance in the couple's relationship, for example, or where complex legal issues such as the validity of a prenuptial agreement arise. In these cases, forcing a couple to mediate may simply provide more ammunition for what is bound to be a protracted legal battle.
There are practical questions to consider too. The Family Mediators' Association is reportedly in a scramble to discover whether it has enough mediators to meet the spike in demand. In some parts of the country there will be a shortage and, until extra mediators are trained, divorcing couples will still have to look elsewhere to find them. Mediation success rates ? currently high ? are likely to fall as cases that legal advisers would otherwise have ruled unsuitable cease to be filtered out.
On the other hand, the removal of legal aid for divorce cases ? currently proposed by the government ? will see more people divorcing without any legal assistance at all. With the loss of legal advice comes the removal of that filter, as divorcing people no longer have access to expert opinion as to whether their cases should be settled out of court. Imposing mediation may be one way to counterbalance the otherwise inevitable spike in litigation. But only if it works.
Source: http://www.guardian.co.uk/commentisfree/2011/feb/24/divorce-mediation-sometimes-wont-work
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