There has been talk of bringing in a “no fault divorce” process for well over 20 years as it has long been recognised that the current system, which is heavily based upon the need to blame one party, is not fit for purpose and has created unnecessary conflict. As a mediator, I increasingly find myself apologising to both parties, on behalf of the family law system, for the fact that we often need to spend time looking for a way to apportion this blame in order to allow them to move forwards with the divorce process.
Whilst this conversation can be hard enough in a joint mediation meeting, when there is an experienced mediator present to help navigate through this very delicate conversation, there can be no doubt that it has far less potential to lead to unnecessary conflict than either of the parties trying to come up with reasons for the divorce themselves or instructing solicitors to do this for them.
It was, therefore, very encouraging to see the Government’s response to the no fault divorce consultation, which is helpfully entitled “Reducing family conflict: Government response to the consultation on reform of the legal requirements for divorce”, in April 2019.
I was waiting to write my thoughts on this new development until after a timetable for implementation had been finalised but, several weeks later, matters do not seem to have progressed to that stage. Part of the reason for this might well be the legislative burden of Brexit and you might find my article about the missed opportunities for using mediation as part of the Brexit negotiations process interesting in relation to this topic.
The value of mediation in no fault divorce proceedings
In light of the lack of progress, and mindful of the possibility that either this or a successor Government may not actually implement the no fault divorce proposals, I am writing this post in order to help to ensure that mediation does not lose its place once the changes comes into effect.
My key concern relates to the well-known law of unintended consequences and the effect that the changes might have on the use of mediation. At face value, it seems obvious that removing unnecessary acrimony and argument from the divorce process should mean that the more amicable way of reaching financial settlements and agreeing the children’s living arrangements that mediation offers becomes more widely promoted and used.
However, having seen similar arguments put forwards when legal aid was removed for most divorcing and separating couples, with the Government promising to promote the use of mediation as part of these changes, and having watched the near demise in legal aid mediation as fewer and fewer people have been referred to mediation at the same time that mediator’s legal aid pay has been slowly but surely eroded, I am more than a little wary about assuming that the “no fault divorce” changes will be able to fulfil their true potential as far as mediation is concerned.
Already, I have sensed that there is a real danger that the changes will be used to discourage rather than encourage the use of mediation.
There is a risk that solicitors will use the introduction of “no fault divorce” to tell clients that there is no longer any need to see a mediator as there is nothing contentious about the divorce process, with clients being encouraged to sort out the finances and children’s issues via solicitors, resulting in unnecessary costs and acrimony.
Equally, there is a concern that the message might get out to divorcing couples that they no longer need mediation as it will be straightforward to get divorced and that there will, therefore, be little left to discuss within the mediation process, resulting in many people only realising much later that they have missed an opportunity to foresee and deal with the numerous issues that can arise as part of a separation.
If either of these things happen then this will be a very unfortunate outcome as the true benefits of mediation lie in taking nearly any situation, whether it be highly contentious or very amicable, and assisting the parties to reach lasting resolutions. There is also the added potential to improve the communication between them, which can be especially important when there are children to consider. Mediation is most certainly not a process that should only be used once a conflict has become serious and, as mediators, we need to send out the clear message that the removal of “blame” if anything makes mediation even more beneficial as it will be easier to reach lasting agreements in light of the fact that there should be slightly less conflict to deal with than might previously have been the case.
The point is that the vast majority of the mediation discussions relate to other issues e.g. the finances, the children and the overarching communication dynamic, with the reasons for divorce being only a small part of the initial discussions.
Given all of this, my hope is that the Government will continue with its plans to bring in “no fault divorce” as soon as possible but that it will also take the opportunity to promote mediation as the first port of call for anyone who has children’s issues or financial assets to discuss. This change of culture is long overdue and I sincerely hope that we will not be looking back on this as yet another missed opportunity that, through the law of unintended consequence, actually has the opposite effect.
Find helpful guidance on family mediation and divorce
If you would like more information on the mediation process or how mediation might help you, please contact me by using the enquiry form on this page or call 01483339379 to arrange a meeting to discuss your situation on a confidential basis.
We have flexible meeting times, including evening appointments, at our Godalming mediation office and we are also able to meet you for family mediation in central London at our office near St Paul’s if that is more convenient for you.
For more information, please download the free “Divorce and separation guide – there is a better way!” and watch the accompanying short videos which can be found on our website.
Godalming Family Mediation