Divorce mediation: should we change our mind?

Abstract

On 20 January 2010, the UK Ministry of Justice (MoJ) published an announcement of a ‘fundamental review of the family justice system’ in England and Wales – Scotland and Northern Ireland have their own, independent systems under their devolved governments. Even the most casual reading of this brief document reminds those of us who work from time to time in the field of family law and policy why we sometimes wonder what the point of our efforts might be. It repeats the familiar mantras about the complex and adversarial nature of the legal system in dealing with family breakdown, about the virtues of mediation and about the desirability of compelling all system users through a portal controlled by mediators before they encounter the legal system. Once again, the politics of divorce in the UK have led policy-makers into an inappropriate and retrograde approach that ignores the lack of evidence that lawyers and courts do indeed promote conflict, the lack of evidence for mediation's effectiveness or for any significant level of unmet consumer demand for its services and of the growing retreat from mandatory mediation in other common law jurisdictions. As is increasingly typical in UK political life, consumers are only to be sovereign if they make the choices that government requires them to make.

Keywords:

• mediation
• adversarialism

Notes

1. This may or may not be a negative finding. While Trinder et al. seem to be concerned about the lack of relationship work, Dingwall and Miller (2001) have suggested that mediation interventions might usefully draw on the more practical orientation of brief therapy. From that point of view a focus on timetable and agreement would not necessarily be undesirable. This may be borne out by the reported stability of the agreements.

2. Even serial divorcees are unlikely to replicate exactly the circumstances of prior divorces, not least because of the existence of those previous claims on property, income, child support, child residence and contact, etc.

3. It may equally be that it has simply been recognized that US family lawyers were always as conciliatory as English lawyers but commentators and policy-makers had held similar biases that had led them to prefer the self-interested version of divorce processing presented to them by mediators. This would, for instance, be consistent with the evidence from Sarat and Felstiner (1995), based on fieldwork during the 1980s.