Speakeasy

We are living in an age where choice rules our everyday lives, from where we buy our fruit and veg to how we resolve our legal disputes.

Gone are the days when a person could only fight his corner through their solicitor and the courts. The legal system has been desperately trying to evolve to offer people with the opportunity to at least attempt to reach a resolution through a non-adversarial approach such as mediation.

The problem is, not everyone has evolved with it. Too many are still willing to face financial and emotional ruin just to get their day in court. Regardless of whether mediation is cheaper, easier, quicker or more satisfactory, the court still seems to hold its allure. And all we currently have to persuade clients is the 'general' pre-action protocol, plaintively insisting it 'encourages' parties to 'consider' using a form of alternative dispute resolution. Both the government and the judiciary have clearly twigged that this guidance is not being considered seriously enough by clients.

So, step into the spotlight our new friend the new-look pre-application protocol and her glamorous assistant the supporting practice direction.

Some may think that the compulsory awareness session will merely be a box to tick before moving on to court. Mediators are committed to helping separated couples reach an agreement and will no doubt continue to take their impartial roles seriously in the mediation awareness sessions. This means that people must seriously attempt mediation but cannot be forced to continue to the next session.

The only cases exempt from the awareness sessions is where the issues surround allegations of domestic violence or child protection issues. The very limited exceptions to attempting mediation may open the floodgates, however, to false claims of domestic violence, simply because a person simply does not fancy mediation.

Short notice

The difficulty faced by disputing couples is just how long they are going to have to wait before a mediator is able to offer an awareness session. While family lawyers have been expecting the ministry's decision, the protocol's 'birthday' at the beginning of April provides little notice to family lawyers who wish to be trained as a mediator in readiness for the implemen-tation of the protocol.

Indeed, there is no information at present as to whether mediators need to have a certain level of experience or qualification to undertake the awareness sessions. The amount of cases issued with the courts in England and Wales (Scotland is not subject to the new protocol) compared to the current number of mediators raises cause for concern.

The delay in accessing mediation could cause frustration for the parties, comp-ounding the issues and resulting in the parties not willing to discuss their issues in a non-confrontational way in mediation.

Court applications could then be backlogged as a cause of separated couples issuing as soon as the awareness session is 'out of the way' and hearings pushed down the list, creating further tension for both clients and their lawyers. Those who are already involved with mediation, with a genuine desire to mediate, could see their appointments delayed. There is every chance the awareness session could be as much of a hindrance as a help.