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Compulsory mediation will add to suffering of divorcing couples warns leading family lawyer

2nd March, 2011

A leading North West family law expert fears that divorcing couples will be denied justice following the announcement that mediation is to become compulsory.

Richard Barge describes as ‘astonishing’ the speed at which the Government has introduced rules compelling couples to attend mediation before they are allowed to use the courts and fears it is ‘doomed to failure.’

“This was initially suggested in late 2010 and it is to come into force at the beginning of April. There has been precious little consultation,” said Richard, specialist divorce lawyer and head of family law at Aaron & Partners LLP in Chester.

“I fear it is being rushed through with the sole objective of saving money without proper consideration and couples who are separating will pay the ultimate price by being denied justice in the courts. This could have long-lasting, serious implications for them and their children.”

Richard’s comments come after the Ministry of Justice announced that separating couples will be forced to attend a compulsory mediation awareness session before they are allowed access to the courts. The Family Mediators Association is currently assessing whether it has enough mediators to cope with the new demands that will come into place on 6 April.

Richard Barge shares these concerns: “There are not enough mediators nationally and this has been brought in too quickly to do anything about that,” he said.

“I am very concerned that there will be serious delays whilst couples wait for their session. This prolongs the agony for all concerned and can also have serious financial consequences for the couple.” Richard fears that mediation is not as effective as other types of matrimonial resolutions such as collaborative law where couples agree not to go to court but instead sit around a table with their legal representatives.

“Collaborative law can be extremely effective because the couples are sitting around a table in a non-combative environment,” he explained. “The difference is the collaborative lawyers have the expertise to advise their clients within those sessions.

“Mediators aim to simply facilitate a discussion, they cannot advise and they don’t always have the refined legal knowledge or practical expertise to get the best results for couples.”

Richard also fears that if one person is more assertive or dominant within the couple, they could benefit at the expense of their former partner.

“One party is usually either emotionally stronger or more financially savvy than the other and that creates an inequality in their bargaining positions. Mediation cannot address effectively or solve that imbalance.”

He also fears that it may be in one party’s interests to delay or not fully disclose their wealth in a way that simply could not be done within the court process. This can be “financially ruinous” for the other party, according to Mr Barge.

“Mediation has its place in the range of solutions available to separating couples but it is the compulsory element that is causing the alarm. Forcing people down this route, possibly against their wishes, is simply counter-productive.

“There should be a horses for courses approach, rather than a one size fits all solution based on poorly researched cost savings,” he concluded.

The compulsory mediation decision follows proposed cuts to legal aid that lawyers warn will see more and more people having to represent themselves in court.

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