Mediation has long been seen as a good way of trying to resolve differences especially in family cases. However, hard on the heels of one of Britain's longest-running and most bitter divorces, there is a concerted effort by the courts to drive more couples towards mediation.
The multi-million pound divorce case of Young v Young was, according to the judge, "extraordinary even by the standards of the most bitter of matrimonial breakdowns". The seven-year court battle between the couple has cost millions and notched up 65 hearings in court before the wife finally secured a £20 million financial award. And the case may yet return to court to deal with costs and enforcing the award.
It has been shown that the average time for a mediated case is 110 days compared to 435 days for those that aren't and as well as shortening the process it is hoped mediation will reduce the emotional and financial burden on those involved.
Mediators are trained to help a couple work things out together. They identify issues they differ over and help them both reach agreement. Mediators are neutral, will not take sides and usually recommend each person obtains legal advice alongside the mediation process. In some cases lawyer assisted mediation is used where the lawyers for the parties attend the mediation with them to advise and assist during the process.
Collaborative family law is a relatively new way of dealing with family disputes and could be seen as taking mediation to the next level. In this process, the lawyers and the parties enter into a legally binding commitment to resolve the case by negotiation. They may also use relevant experts and family counsellors, but there is no actual mediator.
Under proposed measures in England currently before Parliament most couples who are separating will be compelled to attend a mediation, information and assessment meeting to determine whether their case is suitable for mediation. Meanwhile here in the Isle of Man, following the publication of the Mediation Working Group Report in 2009, there are a number of accredited mediators available on the Isle of Man. Man. Some have additional experience or qualifications in law, psychology, family support or counselling. There is a pilot scheme under which a Duty Mediator is sometimes available to give information about mediation to parties at family court directions sittings.
The Court strongly encourages parties to attempt mediation. This is further supported by the Isle of Man Government's decision to grant Legal Aid for Mediation. Parties are expected to at least consider mediation and they may have to offer a reasonable excuse as to why they did not try it if they find themselves in court without having done so. In an extreme case, someone who refuses to even attempt mediation may face a costs penalty.
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