Pros and Cons of Mediation During Dissolution of Marriage

Today, mediation is widely recognized around the world as a feasible substitution to litigation. It has been suggested that the process of mediation has been around for many years but it only started being adopted by the legal realm in the 1990s. Mediation is a process where a separating or divorcing couple seek help from a neutral third party whose main role is to assist them in achieving mutual consensus about future arrangements regarding their children such as custody and child support fees without going to court. A judge could easily resolve these concerns but the decisions made would not be reversible regardless of whether the parties involved are satisfied or not.

Litigation is often referred to as a rich man’s game because of its extremely high cost, but the same cannot be said about mediation. Mediation, compared to litigation, is very much less expensive as the cost of one mediator is not as much as each hiring a lawyer to represent them in court. Mediation is not only just economical but also less time consuming. It is stated in the Law Commission that the average cost of a mediated case and a legal aid case with the help of lawyers is £550 and £1,565 respectively. The evidence that mediation is quicker than litigation can be extracted from the National Audit Office Report ‘Legal Aid and Mediation for People involved in Family Breakdown’, where it specifies that a mediated case lasts only for an average of 110 days while non-mediated cases average of 435 days.

The flexibility of being in court is not anywhere as close to the process of mediation. In mediation, the parties are not just limited to legal or financial issues. Parties in mediation are not constrained by the law, and therefore allowed to deliberate on issues that may or may not be related to a legal problem. As the parties have full control over the flow, they are able to place their full attention on their unique needs. What the court feels important may not be to the parties involved. In a courtroom setting, the primary decision making power lies upon the judge. Judges often make their decisions based on unclear standards, for example, the “best interest of the children” , which sometimes is not what the parents think is best for their child. Mediation is highly encouraged because the parties know their own families best and it is better for the parents and children to have the parties make the decisions regarding their own and the children’s future instead of leaving it in the hands of a judge who does not have the benefit of first-hand knowledge of the family’s needs and preferences.

It is believed that mediation encourages the parties to work as a team by communicating and being honest with one another to achieve a mutual agreement. Mediation has the vision of preserving and strengthening the bonds of the two parties. Research has proven that it is easier for children to accept their parents’ separation compared to knowing they fight with each other instead of conveying effective communication to resolve their problems. Parents in mediation would usually prioritize the needs of their children to protect their feelings as nothing can be more damaging to their emotions than have their parents go through a divorce. The quicker the separating couple resolves their conflicts via mediation, the less stress both the parties and their children would have to go through.

Family law is a particularly private sector of the law and therefore the more appropriate option is to resolve family issues in private. Very much unlike court proceedings, the contents of mediation are private and confidential. The parties can avoid any unnecessary public attention and reputational harm by choosing to resolve their conflicts outside a court setting. To ensure privacy, the parties and the mediator are required to sign a confidentiality agreement during the first mediation session. However, in the event there is someone in risk of harm or accused of being fraudulent, the mediator has the right to break the confidentiality agreement.

Nothing is made perfect in this world. As beneficial mediation may be for both the separating couple and their children, it has its flaws. Not all parties want or can afford to hire a counsel to represent them and as a result, the unrepresented party may not be fully aware of his or her rights and therefore, enter into an unfair agreement. This ought to be something every party who opts for mediation should be aware of, for the agreements -- no matter how unreasonable it is -- will be enforced unless it is proven to be signed under fraud or duress. It is recommended for the parties involved to hire a counsel, if they can afford to, and seek their consultation throughout the process to minimize or possible even eliminate the possibility of the signing of any unfair agreements. If a mediator believes either party is struggling to comprehend a proposed agreement that may affect their legal rights, the mediator has a duty to advise the party to seek legal help.

The parties may not always have the same negotiating control which may result in an unfair outcome. There are no official rules that the mediation process has to be kept fair to both parties, unlike in a court. In certain situations, the parties have equal power but in some, one may be more aggressive than the other and the weaker one is always normally the one that loses out. There are several factors that could be the cause of unevenness of power such as income, character, age gap or history of domestic abuse. It may not be the best option for abusive relationships to be mediated as the abuser might take this as a reason to further hurt the weaker party. Cooperation and negotiation can only happen when the two parties feel comfortable being in a close vicinity of one another.

As discussed earlier, statistics have shown that mediation costs less money and time compared to litigation but there is no guarantee that this will always be the case. It is not a 100 per cent chance that the parties will successfully reach a settlement in mediation. When the parties are unable to achieve a mutual agreement, the mediation process may last as long as a court hearing, and if the parties have representative counsels, the cost may be just as expensive or even greater. Not all mediation cases are a success. In some cases, the parties do not progress or there is no productivity and by lengthening their discussions trying to resolve their problems, it costs more time and money. A contributing factor to why there may be no productivity in mediation is because some couples only discover that they are not comfortable having direct contact after they have started the mediation process. Another possible reason is that one of the parties may have no intention whatsoever of achieving an agreement. In cases