The history lesson

Mediation is recognised, by way of anthropological, historical and sociological research, to have had its roots in ancient times. It is the time honoured form of dispute resolution which has been practiced around the globe for millennia, its longevity a result of its effectiveness and adaptability down through the ages, across a range of cultures and civilisations. It still remains the principle method for resolving disputes in East Asia, especially in China and Japan where its extensive use enables the use of litigation to be reduced to the very minimum.

Family mediation – seemed like a good idea at the time

Mediation’s partnership with family law was encouraged by the Government in the United Kingdom for exactly that same reason; to reduce the escalating cost, both financial and psychological, that a rapidly rising UK divorce rate in the 1980’s and 90’s coupled the tradition of court determined divorce settlements was having on individuals and society as a whole.

Fired up by what turned out to be a wildly over optimistic assumption that the public if offered mediation would naturally prefer that route to confrontational, costly court action, the UK Government opened the way for publically funded family mediation by passing the Family Law Act 1996. The drive for mediation driven divorce agreements ran into many problems which included:

• The Government’s effort was perceived as being over centralised, one-size-fits-all and restrictive in both scope and time allocation.

• Responses from those who took part in the initial tranche of mediation information meetings were generally negative and included:

  •  A feeling that mediation was unnecessary as there was little or nothing to dispute in reaching a settlement
  •  One partner refusing to attend mediation
  • Too much distrust between partners to make mediation viable
  •  A cultural preference for instructing a lawyer and going to court

Out of the 7000-9000 people who attended the information meetings only 10% decided to attempt alternative dispute resolution in the form of mediation. Of that adventurous 10% only 37% found that it led to agreements being reached and in a great many cases only with the involvement of solicitors. It began to look as if the great mediation revolution was about to be stillborn.

A natural aversion to change?

Further research by the UK Government discovered that people’s attitude to family mediation became increasingly negative in the absence of sufficient information about the process and that they were apt to confuse it with counselling and reconciliation. Further the majority appeared to have a culturally embedded preference for lawyer managed divorce settlements and would cite the same reasons for avoiding mediation such as:

• Lack of issues to mediate.

• Good communication existing between the parties.

• Only one party willing to consider mediation.

• That divorce is too legal complex for mediation.

• One or both parties nurturing an obsession with protecting their own interests to the point of believing that only legal representation is appropriate for them.

The Government had proposed that mediation was to be publically funded by way of legal aid and that such legal aid would not be granted unless the applicants attended mediation meetings. There were exceptions to this regarding domestic violence and until more became available, the actual availability of mediators.

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