Many years ago the court used to get involved in every case where there were children and their parents were divorcing. However, with the Children Act, which came into being in 1991, the courts only became involved if there was a disagreement between the parents. Are we currently in that position with referrals to mediation? Should we be treating couples in the same way as the pre-Children Act approach? Family mediation seems to see itself as predominantly involved in disputes. The website of Resolution says “Mediators are trained to help solve disputes”.
However, a broader use of a mediator might be to focus on decision making rather than dispute resolution.
It is often surprising that couples know very little about what the general principles of family law are and even if they do know have no idea how to start applying it to themselves. They may not be able to agree what decision to make (like selling the family home for instance) not because they are in dispute, but because neither knows what is best to do.
Also, neither may know what is the best thing to do for themselves individually or for both of them.
They may have a problem but it does not necessarily mean that it should lead to conflict or a dispute. Although a person who wishes to make a court application has to see a mediator first, all couples do not need to see a mediator automatically to see if they need help with any problems arising out of their separation. How much better it would be if there was an automatic referral to a mediator to help with the decision making process so that future problems are headed off rather than await for those problems to arise and for there to be a dispute.
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