Until recently it was only the well-off who could afford expensive divorce lawyers. Since the recent withdrawal of legal aid for the majority of family cases, even those less wealthy are being forced to pay colossal legal fees, leaving families already in precarious financial positions, drowning in debt.
The costs relating to divorce and family break up is not the only challenge separating couples have to face. Long, drawn out proceedings and provocative correspondence is enough to cause even the most amicable of divorces to turn combative.
With the near obliteration of legal aid in family cases, access to justice is being significantly restricted. With an increase in litigants endeavouring to represent themselves, the already struggling courts are forced to spend their time guiding laypersons. Court timetabling is even more strained and it is not unusual for cases to take over a year, often longer, to reach a conclusion.
The status quo can simply not endure. Despite being around in this country for well over three decades family mediation is still relatively unknown and an unused alternative dispute resolution. Mediation allows separating or divorcing couples to reach agreement with regards to the division of family finances and arrangements for their children, regardless of the complexity of the situation. With mediation typically costing between £1,000 and £1,500 this is a significant departure from hefty legal bills, which can easily run into tens of thousands of pounds.
The parties retain control, set their own timetable and achieve tailor made solutions, relevant to their family situation, all in a cost effective framework, with the assistance of a neutral and objective third party. The role of the mediator is to facilitate negotiation, impart knowledge, ensure that both parties remain on an equal footing and that discussions remain constructive. The mediator will also walk the parties through the agreement, making sure it is practical. These ‘test drives’ provide invaluable foresight and allow for refinement, ensuring workability at a practical level, often preventing future difficulties.
Although mediation is not appropriate where there is ongoing abuse, it can be used very successfully in even the most difficult cases. One example is the all too common problems faced by many women (and men) when it comes to the halachic requirement of the Get. It is common for intransigent husbands to be advised to “hang fire” until they receive a settlement beneficial to them. (There are also difficulties, although less publicised, caused when wives refuse to accept the Get). Another problem is that there is often little, if any, direct contact between the couple, and communications relayed via a third party or by way of often hostile correspondence, becomes skewed and inevitably increases resentment, further aggravating the situation. Of course mediation does not guarantee the procurement of a Get. However, if at the onset of impending difficulties, the parties are given the opportunity to discuss their concerns face to face, in a structured environment, with the aid of a knowledgeable, pragmatic, and most importantly, impartial third party it can often relieve fears and misgivings. This can ultimately lead to a much smoother conclusion of the Get process.
Come April 2014, mediation will become a prerequisite. It will become compulsory for Court applications relating to most disputes regarding children and challenges regarding family finances to be preceded by mediation, or at least an attempt at it. The courts will require a good reason if mediation is deemed unsuitable..
With the government’s imposed requirement of family mediation, the removal of legal aid for general solicitor’s advice and litigation, coupled with the continuation of legal aid for family mediation, it is apparent that in the rapidly changing landscape of family law, mediation has an invaluable role to play.
This article was published in the Jewish Chronicle on 27th December 2013