Divorce mediation: should we change our mind?

Abstract

On 20 January 2010, the UK Ministry of Justice (MoJ) published an announcement of a ‘fundamental review of the family justice system’ in England and Wales – Scotland and Northern Ireland have their own, independent systems under their devolved governments. Even the most casual reading of this brief document reminds those of us who work from time to time in the field of family law and policy why we sometimes wonder what the point of our efforts might be. It repeats the familiar mantras about the complex and adversarial nature of the legal system in dealing with family breakdown, about the virtues of mediation and about the desirability of compelling all system users through a portal controlled by mediators before they encounter the legal system. Once again, the politics of divorce in the UK have led policy-makers into an inappropriate and retrograde approach that ignores the lack of evidence that lawyers and courts do indeed promote conflict, the lack of evidence for mediation's effectiveness or for any significant level of unmet consumer demand for its services and of the growing retreat from mandatory mediation in other common law jurisdictions. As is increasingly typical in UK political life, consumers are only to be sovereign if they make the choices that government requires them to make.