Jane Devine: Couples willing to go to law over child access might do better to try mediation first

The Ministry of Justice recently confirmed that it would introduce fees for the employment tribunal system. This is an attempt to reduce the 
£84 million it currently costs to run the system and to reduce the number of cases it hears, by encouraging disagreeing parties into cheaper alternatives, like mediation.

Mediation is a process of negotiation, conducted by an impartial party in which two sides resolve their differences. Even if the emphasis wasn’t on trying to save money, surely it makes sense anyway not to jump straight into a legal process, but to try and come to a mutual agreement? Something which is negotiated is much easier for both parties to accept and work with.

And, if this is seen to work in employment matters, could it not also be applied to family matters? How many warring couples end up in court over arrangements about where their children live and how often they see their absent parent? Not only do these cases cost the state and individuals huge amounts of money every year, what about the impact on the children caught in the middle?

I can understand wronged employees who want their day in court. I don’t understand couples who would rather ask a sheriff to make a hugely important decision about their children’s lives than work it out between themselves.

The benefits of mediation in family disputes are well-documented and widely appreciated by lawyers and sheriffs. Not only do parents know best when it comes to their children, but decisions which are agreed, rather than ordered are much easier for both parents to live with and stick to and that has to be better for children too.

Yet sheriffs will not order couples into mediation because, by definition, mediation has to be entered into willingly by both parties in order that it can work. I can see the logic in that. But, surely there is a better way? Couldn’t we look at a system that might not order mediation, but refuse to hear cases until mediation has been tried?

There will always be cases where for reasons of safety and protection, legal rulings are needed quickly. But, for cases where couples won’t (or might argue, can’t) agree about what should happen with their children, this would surely make them accept responsibility themselves instead of passing it onto someone else.

The legal process is adversarial: it makes someone a winner and someone a loser. For parents who parent apart and therefore have a lifelong relationship to maintain with each other, because of their children, that kind of outcome can be very damaging.

Many couples disregard mediation, thinking that it isn’t for them. What they need to remember is, it isn’t about them.