Pros and Cons of Mediation During Dissolution of Marriage

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where one spouse refuses to give cooperation, therefore being unable to reach a settlement, the couple would have no choice but to resolve their issues in a court, which means an incurrence of additional monetary and time costs.

There is no obligation for mediation to consider what the children want or need; unlike in a court setting, the judge must prioritize what is in the “best interest of the children”. Whilst mediation may assist the parents in cooperating to achieve an agreement between themselves, any agreement reached may not necessarily have placed priority on the children’s best interest. Janet Walker states that if competent children do not voice out their wants and needs in mediation, then it could be in conflict with article 6 of the Human Rights Act 1998. The FMC Code of Practice 2010 states that “at all times mediators must have special regard to the welfare of any children of the family. They should encourage participants to focus on the needs and interests of the children as well as on their own. Mediators must encourage participants to consider the children’s wishes and feelings.”

One can never really know how truthful the other is in mediation. The truth of any matters may not necessarily be revealed in mediation. In a courtroom setting however, counsels are able to call forth witnesses and produce evidence to support their clients’ statements but none of which are accessible to mediators. If a case was brought to court, it would be difficult for a party to hide their assets from their partners but it is very easy to conceal such things in mediation. “Honesty” and “trustworthiness” are two key points to ensure a successful mediation but the “good faith” commitment on each party to the process is sometimes lacking.

A huge flaw in the mediation process is that it not binding. Mediation is not the same as litigation in the sense that if only one party wants to mediate, the other cannot be forced to participate, unlike in litigation, when the plaintiff files a lawsuit, the defendant does not have a choice not to take part. Mediation is a voluntary process which means no party is bound by it and either party can just withdraw as and when they desire as compared to in litigation, only the plaintiff can withdraw when they drop the lawsuit. The mediator has no control to force the parties to cooperate. The party “at fault” can just withdraw at any time if they are unhappy with where the mediation is heading. If the mediation sessions don’t result in an agreement, nothing tangible is accomplished.

Many countries share the same opinion in identifying the advantages of mediation. There may be as many advantages as there are disadvantages of pursuing mediation in a family case, but mediation is definitely the way to go for both those who can and cannot afford legal representatives. No doubt that the cost and time varies among couples and the cost may even be sky high in certain situations; but mediation is generally more time efficient and marginally less expensive than litigation. Despite the flaws of mediation, it cannot be denied that the process is definitely less stressful on both the separating couple and their children. Although mediation does not directly protect the best interest of the children, the couples get to decide what is best for them and I don’t think any court would be able to do a better job than the parents in question. A marriage begins when the couples say their vows, for better or for worse; and when a marriage has to come to an end, I would say that mediation is for “the better” and litigation, for “the worse”.

BIBLIOGRAPHY

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