London South Bank University
Module: Alternative disputeResolution
Essay Title: To What Extent Is Mediation An Appropriate Alternative To Adjudication In The Management of Disputes Arising from Divorce or Separation?
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To What Extent Is Mediation An AppropriateAlternative To Adjudication In The Management
of Disputes Arising from Divorce or Separation?
Table of Contents
Introduction:......................................................2
Theory of the Third party..........................................3
Family Mediation:..................................................5
Children Mediation:................................................6
Finance and property Mediation:....................................8
All Issues Mediation:.............................................11
Conclusion:.......................................................13
Bibliography......................................................16
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Introduction: There are circumstances in which the use of ADR
(Alternative Dispute Resolution) as a mechanism for case
management is more suitable than adjudication, and management of
disputes arising from divorce is arguably one of those areas.
Historically, society and the human race have always found a way
of settling disputes. This could be in the area of family, work
or community settlement. “As early as the time of Henry II the
English society witnessed the centralization and specialization
of its judicial system”,1 and this development has evolved till
this day court and judicial system. However, the problem is as
noted by Galanter that “presumably law is corrective and remedial
in intent; it is designed to restore or promote a desired
balance. But as it becomes differentiated, complex and maze-like
in order to do this with increased autonomy and precision, the
law itself becomes a source of new imbalance”.2 Consequently, in
the 70’s a group of scholars led a movement that established what
we today know as Alternative dispute Resolution (ADR). This
1 R C Van Caenegem: The British of the English Common Law (1988 Cambridge University press) 18-23.2 Marc Galanter: Afterword: Explaining Litigation (9 Law and Society Rev. 1975) 347, 348.
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informal, and alternative way of achieving settlement without
much pain (as presumably was the case with adjudication), was met
with global acceptance, including in the United Kingdom. The Lord
Justice, in Dyson Halsey v Milton Keynes General NHS Trust [200]3 stressed that
“All members of the legal profession who conduct litigation
should now routinely consider with their clients whether their
disputes are suitable for ADR.”4 Hence, the success of its early
application has seen the central government “renovate litigation
and refurbish adjudication”,5 and by so doing incorporate ADR
into the English justice system via The Family Law Act 1996 and The Civil
Procedure Rules (CPR) 1998.
The aim of this essay is to assess the effectiveness of using
mediation as an alternative to adjudication in resolving family
disputes. Firstly, this essay will examine the third party
theory. Secondly, it will explain family mediation as well give a
concise definition of mediation and adjudication. Thirdly, it
will define, analyse, compare and assess the use of both
mediation and adjudication in resolving children, finance and
3 EWCA Civ 576.4 Dyson Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (11).5 Simon Roberts: Mediation in the Lawyers' Embrace. (Blackwell Publishers 2011) 258.
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properties and all other issues that may arise due to breakdown
of relationship. Finally, there will be a conclusion that
illustrates and summarises all issues discussed. This essay will
argue that mediation is not an appropriate alternative to
adjudication in the management of disputes arising from divorce
or separation, and although ostensibly the use of mediation seems
appropriate in certain cases, the argument that the use of
mediation could in totality be an alternative to adjudication in
family disputes does not suffice.
The Third Party Theory: ADR has been defined by Brown and
Marriott in ADR Principles and Practice as a “Range of (informal)
procedures which serve as alternatives to the adjudicatory
procedures of litigation and arbitration for the resolution of
disputes, generally but not necessarily involving the
intercession and assistance of a neutral third party who helps to
facilitate such resolution”.6 Thus, with ADR a neutral third
party helps the disputants to facilitate conversation between
disputants, so they can reach a common settlement. ADR has
various different mechanisms by which disputes can be settled:
6 Henry Brown and Arthur Marriott: ADR Principles and Practice (3rd edn, London, Sweet & Maxwell, London, 2011) 6.
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these include but are not limited to Arbitration, Mediation,
Conciliation Negotiation, Med-arb and Ombudsman. However, the
question of whether one prefers the use of litigation over the
above mentioned alternatives depends largely on “the relative
status of the principles, their intimacy with each other, and the
degree of their organization”.7 As these approaches differs so
do their consequences. Hence, the need for an appropriate method
of processing family disputes. “The theory of third party seeks
to explain and create better understanding into when and how
people intervene in the conflict of others, and with what
consequence”.8 Generally, mediators, arbitrators and judges have
been classified as non-partisans and thereby third parties.
However, Black has argued that “supporters and lawyers commonly
relates to conflicts partly in the same manner as settlement
agent, and vice versa”. Suggesting that whether or not one is a
partisan depends largely on the nature and degree of their
intervention. A good example is a negotiator who often plays the
role of a partisan as well as that of a non-partisan. Hence, when
a negotiator is a lawyer it can be said to be adversarial,
7 Henry Brown and Arthur Marriott: ADR Principles and Practice (3rd edn, London, Sweet & Maxwell, London, 2011)7.8 Marc Galanter: Afterword: Explaining Litigation (9 Law and Society Rev. 1975) 347.
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competitive, and partisan and care less about the other party’s
interest. Whereas, when a negotiator is a mediator it is said to
be accommodating, non-partisan and focus more on resolving the
problem rather than the intentions, motives, and needs of the
involved parties. An attempt to classify the third party through
typology of partisan and non-partisan may be rather fictional.
Hence, “the whole point of resorting to a third party is often
simply to determine which principle the settlement agent will
ultimately support”9. In other words, a lawyer who is contracted
to argue for a particular principle while defending a party may
in the near future find himself arguing against the same
principle in favour of another party. This is the unfortunate
nature of the job of a professional lawyer-a supporter today and
a distinct opponent the next day. Ironically, this is what makes
lawyer’s job discrete from other types of less argumentative
profession like medics or teachers. Thus, relevant to this essay
is the involvement of mediators and judges as third parties and
how the nature and their degree of involvement worsens or
addresses the need of divorcing or separating parties and or
their children. 9 Black, D & Baumgartner, M.p Towards a Theory of the third party –Empirical theories About Court(Longman Inc, New York) 85.
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Family Mediation: Marriage and Co-habitation have in the
history of mankind been the conventional way of creating a family
(at least, a family as it is known), and it has been argued to be
the backbone of the civil society. Sadly, marriages and co-
habitations due break down leading to divorce or separation.
Perhaps, when this happen emotions runs high and settlement in
the form of face-to-fact discussion between the divorcing parties
becomes naturally impossible. Thus, lead to unnecessary hardship
to the parties, and more excruciating is the hardship that it may
cause to children of the relationship when issues like property,
finance and child care are disputed. This is where Family
Mediation or Adjudication comes in.10
To each disputant, the decision about which of these two distinct
methods to use becomes important because it may determine the
cost of divorce, the length of the conflict, the future civil
relationship between the parties and wellbeing of the children.
However, before going into the discussion about why a particular
method may be suitable and therefore appropriate in dealing with
disputes of this nature, it is paramount to look into what is
10 Family Mediation Association <http://www.nfm.org.uk/index.php/help-me-im/divorcing, http://www.nfm.org.uk/ > Accessed 10 December 2013.
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Adjudication and Mediation, and what in practice are the duties
of a judge and a mediator. Adjudication is a legal process by
which judges review evidence and listen to arguments put across
by parties or their representatives and makes a decision which
binds the parties. Accordingly, adjudication is considered a
formal method of dispute management because it is sponsored and
derives its authority through the state. Although fairness may
not always be guaranteed through the use of the court, its
resolutions are unquestionably enforceable. Similarly, mediation
is a form of ADR where a neutral third party (a mediator or
mediators) facilitates communication between disputing parties so
that they can reach a mutual settlement. At the root of mediation
is the principle of partiality and neutrality. In other words, a
mediator is prohibited from any form of coercion, whether direct
or indirect. Hence, the major difference between the process of
mediation and arbitration. In addition, the Family Mediators
Association considers that “family mediation falls into three
different categories: children mediation, finance and property
mediation and all issues mediation”.11 Accordingly, to maintain
11 http://www.thefma.co.uk/family_mediation/what_is_mediation.
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coherency and consistency this essay will adopt these categories
as defined by the Family Mediators Association.
Children Mediation: The majority of family disputes, even
when there are no financial or property disputes between the
parties involve the settlement of issues about children of the
relationship. Children disputes arising from broke down of
relation have for decades been central in in most family dispute
settlements. Typical issues include but are not limited to “where
a child would reside, who the child is to live with, how children
are to be in contact with the non-resident parent, who pays what,
how much and for how long”.12 The basic fact that children of
divorcing parents or partners should not suffer or be used as a
weapon by one party against the other is not only common sense,
it is statutorily prohibited. Section 1(1) Children Act 198913 provides
that “courts should take into consideration (a) the upbringing of
a child; or (b) the administration of a child’s property or the
application of any income arising from it, the child’s welfare
shall be the court’s paramount consideration. (2) In any
proceedings in which any question with respect to the upbringing
12 http://www.nfm.org.uk/index.php/help-me-im/a-child-or-teenager.13 Children Act 1989.
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of a child arises, the court shall have regard to the general
principle that any delay in determining the question is likely to
prejudice the welfare of the child”.14 Again, the question that
arises is to what extent is the use of mediation more suitable in
resolving disputes relating to children of divorce when compared
with adjudication?
One of the core principles of mediation is that the parties make
the decision and not the mediator. Accordingly, it has been
argued by many, including Wallerstein & Kelly that “what is in the
best interest of a child can lie in agreements between the
parents”.15 This is in line with the principle of parental
autonomy. Perhaps, since the children are theirs, they presumably
should be in the best position to decide (with exclusion of
others) what is in the best interest of the children.
Adjudication, however, follows the rule of law. Its procedural
structures regarding issues about children of broken
relationships are not only written, they are followed. Section 10
(1) Children Act 1989 gives the court power to make an order under s
14 Children Act 1989 ss 1(1) (a) (b) and s 2.15 Wallerstein J. S, & Kelly J. B (1980). Surviving The Breakup: How Children and Parents Cope With Divorce Basic Books: New York.
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816 “contact, prohibited steps, residence, and special issue
orders”.17 Consequently, this statutory provision is in direct
contradiction with the presumption of parental autonomy, and in
the order of legal hierarchy statutory provision takes precedence
over moral or legal presumption. As a result, when using
adjudication the parents can be said to be legally handicapped
under s 10 (1),18 as it is for the court to apply s 819 orders having
taken into consideration whatever the court considers to be in
the best interest of a child. The next question is does s 1020
compromise the parents’ position, and what are the effects of The
Act21 on a child? Supporters of ADR may argue that the flexibility
nature of mediation allows parties to voluntarily elect to use
mediation, and possibly arrive at a mutual agreement that
represents the interest of all the parties. However Abel has
argued that “such institutions possess distinctive advantage for
some participates and disadvantage for others”.22 Above all, even
though the provision of Children Act 1989 may suggest some level of
16 Children Act 1989.17 Children Act 1989 s 8.18 Children Act 1989 s 8, 10 (10).19 Children Act 1989.20 Children Act 1989.21 Children Act 1989.22 RICHARD L. ABEL: The Politics of Informal Justice. Volume 1: The AmericanExperience (New York: Academic Press 1982) 301, 302.
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certainty in this area of law, especially when using
adjudication, there exists some uncertainties about the ground in
which the court powers under s 1023 are to be exercised”.24
Therefore, while mediation seems to be a better alternative,
perhaps, ostensibly because of its informality and its
flexibility element, adjudication, arguably, offers more
certainty and clear procession.
Finance and property Mediation: “When couples separate
there are often financial and property issues to be discussed and
agreed”.25 Generally, in order to make an appropriate financial
and or property decision liabilities, and incomes, pensions,
assets to which the parties are entitled must be fully declared.26
Perhaps, it is no secret that intentional concealment of family
or individual assets by a party in divorce proceedings has in the
recent years proven to be one of the main challenges faced by
institutions involved in divorce settlements, thus rendering the
process time consuming, expensive and unpredictable, and thereby
23 Children Act 1989.24 Robert Maidment: Tuning in: A Guide to Effective Listening (Pelican Publishing Co, 1984) 34.25 Family Mediation Association <http://www.thefma.co.uk/family_mediation/what_is_mediation/finance_and_property> Accessed 11 December 2013. 26 Lord Sumption in Prest v Petrodel Resources Ltd [2013] UKSC 34.p 82.
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exposing the parties to unsolicited publicity. The use of
mediation in settling financial and property disputes arising
from divorce or separation gives parties the opportunity to
retain the control the pace and decision making,27 and arguably,
it helps reduce case processing time, cost, and guarantees
parties’ confidentiality. Alternatively, the use of adjudication
in settling financial and property disputes arising from divorce
subject parties to the power of a court as provided by section 22,
23 and 24 of Matrimonial Causes Act 1973 and case laws. Under the Act28 a
court can make maintenance pending suit, financial provision and
property adjustment orders. Accordingly, as each family case is
unique29 “a court may choose to compensate a party for
relationship-generated disadvantages, and perhaps, share the
fruits of matrimonial partnership and give each party equal start
on the road to independent lives”.30 Whilst the use of
adjudication when compared with mediation is arguably expensive,
and may lead to unsatisfactory outcome to either of the parties,
the process is well tested and necessarily documented. Hence,
27 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 258.28 Matrimonial Causes Act, s 22, 23, 24.29 Ormrod LJ in Sharp v Sharp [1981] 11 Fam Law 121.30 House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.
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in the absence of issues such as racism, sexism , party
capability and favouritism which sometimes surpass a judge’s fair
judgement, parties are in most cases assured of the
professionalism and fairness required of legal entities by their
respective professional bodies, and to which they often
abide/employ while presiding over cases. Thus, the effectiveness
of legal expertise combined with the principle of doctrine of
precedence, as practiced in most common law jurisdiction, serves
to guarantee consistency and certainty in the process. In
contrast, most family mediators are not legal experts. Although
most family mediators are members of some acclaimed professional
body, there remain some ambiguities as to what extent their
practice is in reality monitored, scrutinised and corrected by
the relevant body. Lack of adequate training and expertism of
most family mediators may serve to render the use of mediation as
a method of resolving disputes arising from divorce less
satisfactory when compared with adjudication. This is arguably
the case, even when lawyers, as recommended in the Baldam Report,31
are mediators. To that point, Simon Roberts argued that “the use of
31 Report of the Committee on Alternative Dispute Resolution, General Council of the Bar, October 1991.
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lawyers as mediators is a threat to the integrity of mediation”,32
holding that…
”It is a breath-taking arrogance in the
assumption that lawyers can effortlessly take on
a delicate, complex, unfamiliar form of
intervention as if it were just another part of
legal practice”.33
However, since most family mediators are non-legal qualified
(lawyers or judges), the question about the quality of services
provided by mediators remains largely unanswered. On the other
hand, the use of mediation has its advantages over adjudication.
It is a negotiated settlement; it serves to preserve parties’
relationship even after divorce.34 Future relationships between
divorcing parties are, perhaps, essential, particularly in cases
where children are involved. Furthermore, since mediation is held
in private parties avoids the risk of publicity which is
customary with adjudication. What if a party in a divorce dispute
32 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 261.33 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 261.34 Professor Robert Jackson: Mediation versus adjudication <http://www.parle-adr.co.uk/docs_media/med_v_adj.pdf> assessed 02 January 2014.
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intentionally conceals its wealth? To what extent will mediation
be useful in getting the party to unveil its concealments? At the
core of mediation is the principle of voluntarism. To mandate or
coerce a party to do anything against its will, notwithstanding
whether or not that which is being mandated was necessary for
upholding mediator’s impartiality, will strike against this
principle. Whilst the issue of concealment could pose a
considerable threat to both a mediator and the mediation process,
it certainly does not pose a threat to the court, as the court
would whenever it is fair and just draw adverse inferences
against the party in breach.35
Paradoxically, the majority of these disputes are avoidable by
the use of pre-nuptial or post-nuptial agreement. Pre-nuptial is
“a written contract between two people who are about to get
married, setting out the terms of possession of assets, treatment
of future earnings, control of the property of each, and
potential division if the marriage is later dissolved”.36 These
agreements are fairly common if either or both parties have
35 Prest v Petrodel Resources Ltd [2013] UKSC 34.36 The free Dictionary. Com <http://legal-dictionary.thefreedictionary.com/antenuptial%20agreement> Accessed 18 December 2013.
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substantial assets, children from a prior marriage, potential
inheritances, high incomes, or have been "taken" by a prior
spouse”. The English Court is of the view that these types of
contracts are not binding.37 In M v M38 it was argued by Connell J
that nuptial agreements “tend to guide the court to a more modest
award than might have been made without it”.39 One of the
arguments advanced against nuptial agreement is that it is
against the public opinion40. However, it is now considered a
factor of “magnetic importance”41 for which “judges must give due
weight”.42 Thus, nuptial agreement seems at the mean time the
only legally recognised method for which parties can avoid
finance and property disputes arising from divorce or separation.
All Issues Mediation: “All Issues mediation covers all
issues discussed above, and including but not exclusively to the
problem of contact with grandparents, family members and
friends”.43 These issues, although they are far less argued in the
37 Hyman v Hyman [1929] A.C. 601.38 [2002] 1 FLR 654.39 M v M [2002] 1 FLR 654.40 Macleod-v-Macleod (Isle of Man) [2008] UKPC64, Baroness, H. J.41 Crossley v Crossley [2007] EWCA Civ 149.42 Radmacher v Granatino [2009] EWCA Civ 649.43 Family Mediation Association < http://www.thefma.co.uk/family_mediation/what_is_mediation/all_issues_mediation > Accessed 02 January 2014.
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court, have been contended by mediation practitioners as the grey
area of family disputes which the court has totally neglected and
for which mediation, because of its localization, is the most
effective method for restoring the relationship between extended
family or friends and children of divorce, as well as the
parties. The fact that relationships between divorcing parties
and or children of divorce with their longtime friends, their
grandparents and or other family members can (in some cases) be
as important as that of children and their parents may come
across to many (more especially to those that classify divorce or
separation as a ‘private matter’) as ‘no one’s cup of tea’. It
has, however, been argued by National Family Mediation that “the
importance of close-friends or families relatives, particularly
in stressful times, are for more important than is acknowledged.
It serves as a reassurance in times of change – to both children
of divorce or separation and or any party in grief that they are
loved, and that it is not their fault”.44
44 National Family Mediation http://www.nfm.org.uk/index.php/help-me-im/a-grandparent > Accessed 02 January 2014.
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Therefore, disputes arising from divorce or separation, even when
they involve only the disputants should first be mediated. Lord
Wilson of Culworth in argued that…
“The vast majority of disputes which follow the
breakdown of a relationship, whether the parties
were married, were civil partners or otherwise, are
entirely capable of consensual settlement rather
than adjudication; and it is vital that all cases
which can be settled should be settled”45
This is arguably the case even when the issues in dispute are not
family related. It was held by the Court of appeal in Leicester
Circuits Ltd v Coates Brothers plc46 that “Success in litigation does not
stop ‘punishment’ of party withdrawing from mediation”.47 As a
result, the court seems to directly recognize the importance of
ADR, and by occasionally requiring parties to go through ADR48the
court appears to have agreed with the National Family Mediation’s
argument that there are grey areas for which the use of court is
45 The keynote address by Lord Wilson of Culworth, delivered at a reception at The Reform Club on 29 November 2011 hosted by Collaborative Family Law <http://www.familylawweek.co.uk/site.aspx?i=ed90145 > Accessed 02 December 2014. 46 [2003] EWCA Civ 333.47 Leicester Circuits Ltd v Coates Brothers plc [2003] EWCA Civ 333, p 32.48 Kinstreet Ltd v Belmargo Corp Ltd (1999) unreported. 314.
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inappropriate. Whilst, it may be argued that “a court has not
right to force parties to use ADR”,49 the view “that lawyers for
both parties are under a heavy duty only to resort to litigation
if it is unavoidable and the dispute cannot be settled by some
other non-court based mechanism”50remains a good law51. The problem
with this raising support for ADR/mediation by the court is that
it is not clear whether or not “this is part of a project to
renovate litigation, to refurbish adjudication or a move away
from courts and specialist legal personnel”.52 However, Abel has
argued that “by sponsoring informal institutions the state
increases its quantum of resources devoted to social control.
Hence, increasing the capacity of the court”.53 Perhaps, while the
court recognizes the importance of ADR as a method of conflict
resolution, Simon Robert has argued that “integrating ADR process
into the public justice system is problematic despite its
superficial attraction.”54 Suggesting, as did the National Family
49 Court of Appeal in Halsey v Milton Keynes General NHS Trust (2004) 1 WLR 3002.50 Lord Woolf in Cowl -v- Plymouth City Council [2001] EWCA Civ 1935.51 Final report of the Family Justice Review.52See footnote 5 above.53 RICHARD L. ABEL: The Politics of Informal Justice. Volume 1: The AmericanExperience (New York: Academic Press 1982) 273.54 Simon Roberts, Towards A Minimal Form of Alternative Intervention (California: Jossey-Bass 2011) p 40.
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Mediation, that a true alternative must be distinct from court
process.
Conclusion: The importance of the use of ADR as a method of
conflict resolution can hardly be over emphasised, and so is the
selection of mediation by Beldam Committee as the most appropriate
type of ADR useful in the settlement of conflicts arising from
divorce or separation. Accordingly, the use adjudication as the
formal method of conflict management has undeniably sharped and
structured the legal world. Its value and reliability are not to
be compromised, and is arguably irreplaceable. This essay has by
way of analysis explained the third party theory, its motives and
use to disputants. Furthermore, the importance of family, and
origin of family disputes were as well discussed. At the heart of
this essay were the in-depth analysis and valuation of children,
financial and property, and all issue mediation in the assessment
of mediation as an appropriate alternative to adjudication in the
management of family disputes. It was clear, perhaps, as analysed in
this essay that the use of mediation as a method of conflict
resolution when compared with adjudication is less expensive, time
effective, flexible, confidential, and so are the recognition of the
impartiality and the distinct facilitative approach of a mediator.
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To this end, Abel has argued “that what appears as help may often be
coercion, and what appears inefficient coercion may actually be the
neutralization of conflict”.55 Thus, suggesting that the promise to
redress a family disputes through mediation is somewhat illusive.
However, whether or not Abel’s argument would stand the test of time
will depend largely on the practical achievement of the use of
mediation as a tool of dispute management. Adjudication, in the
other hand, offers disputants a rather consistent and familiar
process. Although, it has been argued to be inflexible, costly and
unnecessarily ambiguous, it has since the middle age been central in
the maintenance of law and order in the civil society. How then
could the use of mediation replace that of adjudication in the
settlement of disputes arising out of divorce or separation when
mediation is “stripped of the procedural safeguards of
adjudication”?56 Does mediation “carry the risk of unregulated
coercion and covert manipulation”?57 Thus, since “the shift in
perspective is too limited”58 the answer to these questions remains
paradoxically both yes and no. What is to be borne in mind is that
55 RICHARD L. ABEL: The Politics of Informal Justice. Volume 1: The AmericanExperience (New York: Academic Press 1982) 308.56 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 26257 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 26258 Simon Roberts, Towards a Minimal Form of Alternative Intervention (California: Jossey-Bass 2011) p 40.
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even in those cases where mediation is alleged to be most effective,
“there will always be a residue of such disputes which can be
resolved only by the court”.59 Perhaps, the issue remains as argued
by Galanter “The sailor overboard and the shark are both swimmers,
but only one is in the swimming business”.60
Moreover, relevant to this debate is the decline in popularity of
the use of ADR in the United States where it originated. Hence, the
question to ask is could the UK learn any lesson from the North
American experience? One of the arguments put forward by Robert was
that “contemporary findings from North America cannot justify any
blanket condemnation of alternative to state sponsored
adjudication”61. He conceded, however, that the decline of ADR as
seen in North America should encourage the UK to carefully consider
the types of disputes for which the use of ADR are desirable.
Critics have argued, perhaps, that the use of mediation as a tool
for resolving disputes may only be appropriate where gross imbalance
in power between two parties are absent. However, what is true is
59 The keynote address by Lord Wilson of Culworth, delivered at a reception at The Reform Club on 29 November 2011 hosted by Collaborative Family Law <http://www.familylawweek.co.uk/site.aspx?i=ed90145 > Accessed 02 December 2014.60 Marc Galanter: Afterword: Explaining Litigation (9 Law and Society Rev. 1975) 363.61 Simon Roberts, Towards a Minimal Form of Alternative Intervention (California: Jossey-Bass 2011) p 25.
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To What Extent Is Mediation An AppropriateAlternative To Adjudication In The Management
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the need to acknowledge the limitation of any attempt to explain the
profile and outcome of litigation necessarily by comparing a country
with another, as “societies are made up not only of multiple
disputes processing institution but institution of diverse types”.62
Generally, the risk of adopting only mediation as an alternative to
adjudication, even just in the area of resolving disputes arising
from divorce does not suffice. It follows that not only are there
uncertainties in the quality of services provided by most mediators;
the increase of state control through the use of informal
institutions is to be discouraged. Accordingly, it is submitted
therefore, that the use of mediation are limited in principle. Yet,
even when it is used, its enforceability depends largely on goodwill
of the parties. Our present civil society is not ready for justice
that is based on lofty goodwill. Thus, we still love adjudication.
(Word count: 4026)
BibliographyCases:
Cowl -v- Plymouth City Council [2001] EWCA Civ 1935
Crossley v Crossley [2007] EWCA Civ 149
62 Marc Galanter: Afterword: Explaining Litigation (9 Law and Society Rev. 1975) 365.
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Dyson Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ576 (11)
Goodman v Gallant [1986] 2 WLR 2 [2004] EWCA Civ 546
Halsey v Milton Keynes General NHS Trust (2004) 1 WLR 3002
Hyman v Hyman [1929] A.C. 601
in Prest v Petrodel Resources Ltd [2013] UKSC 34.p 82
Kinstreet Ltd v Belmargo Corp Ltd (1999) unreported. 314
Leicester Circuits Ltd v Coates Brothers plc [2003] EWCA Civ 333, p 32
M v M [2002] 1 FLR 654
Macleod-v-Macleod (Isle of Man) [2008] UKPC64, Baroness, H. J
Miller v Miller; McFarlane v McFarlane [2006] UKHL 24
Oxley v Hiscock [2004] EWCA Civ 546
Prest v Petrodel [2013] UKSC 34
Prest v Petrodel Resources Ltd [2013] UKSC 34
Radmacher v Granatino [2009] EWCA Civ 649
Sharp v Sharp [1981] 11 Fam Law 121
Stack v Dowden [2007] UKHL 17
Young v Young [2013] EWHC 3637 (Fam)
Legislations:
Matrimonial Causes Act 1973.
The Children Act 1989.
Trusts of Land and Appointment of Trustees Act 1996.
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To What Extent Is Mediation An AppropriateAlternative To Adjudication In The Management
of Disputes Arising from Divorce or Separation?
Books
Black, D & Baumgartner, M.p Towards a Theory of the third party –Empirical theories About Court(Longman Inc, New york) 85.
Henry Brown and Arthur Marriott: ADR Principles and Practice (3rd edn, London, Sweet & Maxwell, London, 2011) 6.
Henry Brown and Arthur Marriott: ADR Principles and Practice (3rd edn, London, Sweet & Maxwell, London, 2011)7.
R C Van Caenegem: The British of the English Common Law (1988 Cambridge University press) 18-23
Robert Maidment : Tuning in: A Guide to Effective Listening (Pelican Publishing Co, 1984) 34
Wallerstein J. S, & Kelly J. B (1980). Surviving The Breakup: How Children and Parents Cope With Divorce Basic Books: New York
Journal Articles:
• ABEL, R, the Politics of Informal Justice. Volume 1: The American Experience (New York: Academic Press 1982).
• Black, D & Baumgartner, P, Towards a Theory of the third party–Empirical theories About Court (Longman Inc., New york).
• Brown, H & Marriott, A, ADR Principles and Practice (3rd edn, Sweet & Maxwell, London, 2011).
• Fiss, O, Against Settlement (Yale Law Journal 1984).
• Galanter, G, Afterword: Explaining Litigation," 9 Law and Society Review 347 (1975) .
• Gilmore, S and Glennon, L, Hayes and Williams’ Family Law (3rdedn, Oxford University Press 2012).
• Roberts, S & Palmer, M, Dispute Processes (2nd edn, Cambridge University Press 2008).
3021646 Page 26
To What Extent Is Mediation An AppropriateAlternative To Adjudication In The Management
of Disputes Arising from Divorce or Separation?
Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011)
Simon Roberts, Towards a Minimal Form of Alternative Intervention (California: Jossey-Bass 2011)
• Wallerstein, J & Kelly, J, (1980). Surviving the Breakup: How Children and Parents Cope With Divorce (Basic Books New York 1980).
Online Articles:
Family Mediation Association < http://www.thefma.co.uk/family_mediation/what_is_mediation/all_issues_mediation > Accessed 02 January 2014
Family Mediation Association <http://www.nfm.org.uk/index.php/help-me-im/divorcing, http://www.nfm.org.uk/ > Accessed 10 December 2013
Family Mediation Association <http://www.thefma.co.uk/family_mediation/what_is_mediation/finance_and_property> Accessed 11 December 2013
National Family Mediation http://www.nfm.org.uk/index.php/help-me-im/a-grandparent > Accessed 02 January 2014
Professor Robert Jackson: Mediation versus adjudication <http://www.parle-adr.co.uk/docs_media/med_v_adj.pdf> assessed02 January 2014.
The free Dictionary. Com <http://legal-dictionary.thefreedictionary.com/antenuptial%20agreement> Accessed 18 December 2013
The keynote address by Lord Wilson of Culworth, delivered at areception at The Reform Club on 29 November 2011 hosted by Collaborative Family Law < http://www.familylawweek.co.uk/site.aspx?i=ed90145 > Accessed 02 December 2014
The keynote address by Lord Wilson of Culworth, delivered at areception at The Reform Club on 29 November 2011 hosted by Collaborative Family Law <
3021646 Page 27
To What Extent Is Mediation An AppropriateAlternative To Adjudication In The Management
of Disputes Arising from Divorce or Separation?
http://www.familylawweek.co.uk/site.aspx?i=ed90145 > Accessed 02 December 2014
Internet Sources:
• http://www.nfm.org.uk/index.php/help-me-im/a-child-or-teenager
• http://www.thefma.co.uk/family_mediation/what_is_mediation
Official (Government) Publications and Reports:
Final report of the Family Justice Review Report of the Committee on Alternative Dispute Resolution,
General Council of the Bar, October 1991.
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