A new drive for couples to seek mediation when they split aims to save time, money and distress. But will it work?
When Adam Kirkwood’s marriage broke up two years ago his first thought was to consult a solicitor. He and his wife were parting amicably – they both felt their relationship had run out of road – but it did not cross his mind that there was any alternative to going to law.
To his surprise, his solicitor suggested he try mediation. “I had no idea what it was all about but we thought it was worth giving it a try,” he says.
Over three sessions with a mediator – a specially trained counsellor – near their home in Reading, Berkshire, he and his wife discussed arrangements for the care of their 12-year-old son, carried out a valuation of their assets and decided how to divide them.
A draft agreement, prepared by the mediator, was given to their lawyers to check. Then the trouble started. “A few things needed to be clarified, but all of a sudden we were into a very formal process,” he says. “Letters went back and forth and it began to feel a bit fractious and frustrating.
The government would like to see more marriages end in such a civilised fashion: last week it announced that as of April 6, all couples applying to the family courts to resolve disputes over children or assets would be required to undergo a mediation assessment before they launch proceedings. The coalition hopes that a substantial number will think mediation an attractive alternative to a protracted and bitter fight through the courts. It will not only save them money (the initiative is directed at people who are funding their own cases, as those in legal aid are already offered mediation) but will also help to free up the family courts, which are frequently filled with petty, emotion-laden disputes that escalate into full-blown legal warfare.
The move towards mediation is about more than just cost-cutting: it signals a shift in attitude towards divorce and the “normalisation” of an event that was once a source of shame but has gradually become an everyday occurrence.
Almost one in two marriages ends in divorce. In 2009 there were 137,000 divorces in England and Wales, a rise of 16% on the previous year. With so many couples calling time on their marriages, divorce is inceasingly being seen as a “life stage” to be got through as quickly and painlessly as possible. What we lack is a mechanism for ending marriages that reflects this social shift and takes the sting out of acrimonious break-ups. The government, at least, hopes that mediation may be the answer.
In America the idea of divorce as an opportunity to reinvent yourself has become common. A whole industry has sprung up offering greetings cards, celebration cakes and streamers for divorce parties. One of the most popular features on The Huffington Post, the news and comment website visited by 25m people a month, is its divorce forum, replete with shared suggestions on everything from how to sustain a close-yet-distant relationship with your ex (and the in-laws), which phone is most likely to trip you up in the divorce courts (if its memory holds compromising texts or financial spreadsheets), to how yoga may help you through the emotional trauma.
Here, although we all probably know someone who has been through a divorce, how to handle one is barely talked about. The doughty few may arm themselves with the Which? Guide to Divorce or chance their arm on a £17 download from quickie-divorce.com, but most of us go straight to a solicitor.
“The biggest problem is that people just don’t know an alternative exists,” says Suzy Miller, founder of the Starting Over Show, an exhibition held four times a year showcasing the work of professionals involved in every aspect of divorce.
Although a mediated divorce is significantly quicker and cheaper than one fought in court – 110 days compared with 435, and about £1,000 each for mediation against an average of £14,000 in court costs – it is not the easy option, says Miller: “In some ways it’s much easier to scream and shout at each other in court.
Mediation has been around for 30 years but it is only in the past few that it has begun to catch on. According to the Ministry of Justice, the number of couples going to mediation has risen from 400 a year to 15,000. Mediators are usually counsellors or former lawyers and the average divorce settlement will be sorted out in three two-hour sessions.
“People don’t anticipate the complexity of unravelling a marriage,” says Jane Robey, chief executive of National Family Mediation, which coordinates mediation services around the country.
“It’s really quite scary and one thing mediation gives you is the chance to speak in a way you never can in court. The wife might say ‘I don’t trust you to bring the kids back’ or ‘I don’t trust you to pay the mortgage this month’. That might be irrational, but if it is how she feels, she can say so.
Just getting her ex-husband through the door felt like a triumph for Joanna, whose marriage broke down after 14 years: “I was his third wife and he’d had a very, very bad divorce from his second,” she says.
Is mediation the way forward? Not everyone thinks so, at least not without reservation. The process relies on goodwill and honesty on both sides, and even its most fervent supporters admit that people tend to be less than forthcoming about their assets or tend to “lose” money in the run-up to a financial settlement.
Steve Turvill, who runs a delicatessen in Cambridge, found the experience disappointing. His marriage broke down after 20 years and he and his wife decided on mediation to try to keep the upset for their three teenage sons to a minimum.
Sir Mark Potter, former head of the Family Division, expressed some scepticism on whether the government’s mediation assessments would really make much difference to those determined to have their day in court. “The position at present is that as soon as proceedings are started, most people are referred to a form of conciliation in the form of a Cafcass officer [Cafcass looks after the interests of children involved in family proceedings],” he says. As of April 6 “if the partners can’t agree, it goes on to court, as before”.
Wherever it comes in the process, mediation is about to become a key part of divorce. Let’s hope it fulfils its promise to make divorce more user-friendly and less traumatic for all of us – and cheaper for the taxpayer to boot.