Mediators repeatedly and quite justifiably emphasise that “mediation works”, that it gets results and that it is time efficient and cost-effective. I frequently emphasise that the mediation success rate is high, some feel as much as 90%. This view is clearly underpinned by the contents of a recent Harvard Law School article, entitled “Mediation: Negotiating a More Satisfactory Divorce” and refers to a study undertaken by a researcher, Rachid Balthazar at the University of Leuven in Belgium. (1)
In the context of this study, the researcher questioned how the quality of divorce settlements facilitated by mediation compares with agreements obtained through lawyers. In so doing he questioned 469 Belgian divorcing individuals. About half of these reported a high level of discord with their spouse prior to divorce. It was ascertained that in 30% of cases, the participants were assisted by a mediator. The other 70% were assisted by a lawyer.
The study clearly confirms that as compared with those who went to court, those who engaged in mediation reported that they reached higher quality settlements although, admittedly, these findings do need to be qualified by the fact that the participants themselves chose whether to mediate or not and it may be that those who chose mediation were less combative people.
However, in addition to looking at whether the divorces referred to above were mediated or not the research examined the negotiating style of the mediators and lawyers involved and looked at the relative merits and demerits of facilitative mediation in which a mediator assist the parties to communicate with one another and evaluative mediation (not much used in the UK) where the mediator might evaluate proposals and even make suggestions.
In ostensibly favouring facilitative mediation, the study notes that in cases where this approach was adopted either by a mediator or a lawyer and focused on problem-solving rather than the interests of the parties in question, generally, high quality outcomes were reported.
Overall, and in my view very significantly, it appears that the results of this very authoritative study indicate that couples would be wise to be aided by professionals whose focus is on reducing conflict and encouraging open dialogue rather than a straightforward, competitive approach. The merits of a collaborative law approach were also addressed but it is quite apparent from this study that at least where family disputes are concerned, the facilitative approach that is used by family mediators the world over and not least in the UK is very effective. Indeed, cases that otherwise might take months or years to resolve at huge financial and personal cost to the parties, or indeed might never resolve at all can be successfully concluded in a matter of weeks.
What the Harvard article does not touch upon is the relationship between lawyers and mediators particularly in the context of family law. Lawyers and mediators are not “alternatives” for one another and consulting one does not necessarily mean that you would not either need or benefit from consulting the other. Mediators do not give legal advice so in the context of negotiating a divorce settlement, the parties would at junctures always be advised to take legal advice before agreeing to anything. The process of drafting and filing a divorce petition is not something that falls within the mediator’s remit. In the UK the least, if a financial settlement is agreed through mediation by separated or divorced spouses then in most cases the parties will seek court approval and the attendant paperwork will be prepared by lawyers.
Good, reputable family lawyers have nothing to fear from mediation. Aside from the fact that they may very sensibly adopt a more conciliatory approach to family disputes, the advice that they give in the context of a mediation process could be critical and they are quite able to charge an appropriate rate for the work they do. Family lawyers who buy into mediation and work constructively with mediators will in a sense bask in the glory of successful outcomes and as well as being paid will very happily discover that their turnover has improved considerably.
I should also mention that family mediation is not just about divorcing or separating couples. It also addresses other types of family dispute such as probate or inheritance disputes, sibling rivalry, difficulties incurred by family companies or businesses and disputes involving grandparents. The benefits of mediation and the success rates identified above are also reflected in the types of disputes contemplated here. Mediation is a win-win for all those involved in family disputes; parties, mediators and family lawyers alike.
(1) Mediation – Negotiating a More Satisfactory Divorce. Harvard Law School, 21 October 2019