From the 22nd of April anyone wishing to start court proceedings in divorce will be required to attend a meeting to learn about how mediation can assist before they can issue their court application. The meeting will not be about reconciling the parties to 'have another go' at the marriage but considering ways other than through the courts to resolve the various issues such as maintenance and custody.
I see this as the opening of yet another door to lead to more use of technology in resolving disputes outside of the courts
The full title of the meeting is a Mediation Information and Assessment Meeting (MIAM). The objective is to increase the take-up of mediation so as to reduce the work of the courts. Cynics will suggest it is being required to offset the damage being brought about by the withdrawal of publicly funded legal assistance (Legal Aid) from most court family cases, which has led to more cases being fought in court and taking longer in the process. Lord Neuberger, President of the Supreme Court is quoted as saying:-
“Litigants representing themselves take much more time in court. The danger is that what you save on legal aid budgets, you lose in terms of court efficiency. It will lead to longer delays in court hearings and spending more money on courts".
It remains to be seen whether these MIAMs will have any significant impact. It is generally said that over 90% of family disputes are resolved outside of court anyway, thanks to the work of the lawyers. Whilst that number will be reducing due to the Legal Aid cutbacks and the linked increase in unrepresented parties, disputes that have taken so long as to lead to one spouse about to issue an application in court, may indicate too much negativity within the underlying relationship as to make any ensuing mediation likely to succeed in any event. Add to this the fact MIAMs are not mediation but just an attempt to encourage spouses to participate in mediation, and given that mediation requires the consent of both spouses, many spouses about to issue proceedings , and/or the other spouse, may be very much unwilling to resolve other than by through what they see as the 'justice' of the court. This will be especially so for spouses financially able to fund the cost of litigation.
Surely the far better way to encourage unrepresented parties to mediate is to take steps to promote mediation much earlier in the breakdown of the relationship rather than when so much damage has been done as to lead one spouse to want to go to court.
I believe initiatives like that of the Welsh Government to set up a mediation hub with outlets throughout Wales, and underpinned by online dispute resolution facilities, will have much more impact on reducing family conflict than the MIAMs themselves. See the event at which I will be speaking at on the 29th ApriI.
I also feel that using online facilities such as offered by the company I am connected to, Modria, will have much more impact in enabling a mediator/facilitator to be available to the parties at all times throughout the dispute (both for confidential discussions and joint discussions) rather than just at one pre-arranged meeting. I should add that Modria is currently working with the Hague Institute for the Internationalisation of the Law (HiiL) and the Dutch Legal Aid Board to launch an online mediation service in family cases. See here for more information.