Is compulsory mediation in family law proceedings a good idea?

The government is running a consultation on the proposed use of compulsory mediation in family law disputes.  The aim of the consultation is to inform proposals which will support separating couples to resolve financial and child disputes without resorting to court.  One of the key proposals put forward provides for families in appropriate circumstances to be obliged to make a reasonable attempt at mediation before applying to court.

Mediation in family matters

Family mediation is a form of alternative dispute resolution in which an independent third-party mediator assists separating couples to reach agreement on disputes relating to financial or child arrangements (see our blog here). It can be a very useful tool in resolving differences between separating couples, whilst avoiding the heightened legal costs of contested court proceedings.

Family mediation is not normally cost free (and it is often prudent to instruct solicitors to represent you at a mediation).  However, following the recent introduction of a government-backed mediation scheme, it is possible to obtain a £500 mediation voucher for disputes relating to children (and for financial disputes if there is also an ongoing dispute relating to children).

An offer of mediation in family disputes is already looked on favourably by judges.   The new proposals would mean that mediation will effectively become a requirement, and judges will be allowed to impose cost orders on parties who refuse to mediate.  The proposals outlines certain private family matters where the parties would not be required to mediate, principally in cases involving domestic abuse and certain childcare arrangements.

Why make mediation compulsory?

Following the Covid-19 pandemic, the courts have been under immense pressure to deal with a large backlog of cases. As a result, cases are dragging on, causing the parties to incur extra cost and suffer greater stress.  By way of example, cases involving child custody issues have an average length of 45 weeks.  Diverting cases to family mediation could lead to earlier outcomes for parties and ease pressure on family courts. This allows the courts to prioritise and provide protection for the most serious cases, particularly those with safeguarding concerns where mediation is not an option.  The government calculate that a move to compulsory family mediation could assist up to 19,000 separating families in resolving their issues without having to go to court.

Views of family law bodies

Perhaps unsurprisingly, the Family Mediation Council have welcomed the proposals, citing the benefits of reducing the demand on court resources.  However, unconditional support for proposals is not universal.  Resolution and Women's Aid are urging caution over the new proposals.  Whilst mediation is almost universally acknowledged as a sensible way of attempting to resolve most disagreements, there are concerns that cases with more subtle underlying domestic abuse may slip through the net. This would force abused parties into mediation in circumstances where it would ultimately be better avoided.

Whilst not denying the importance of mediation, Resolution believe that the provision of affordable and early legal advice to families is more important.  If a party has the benefit of legal representation, a specialist solicitor is well-placed to determine whether a case is suitable for mediation or not. Instead of forcing mediation upon separating couples, Resolution suggests that the government should fund, support and signpost organisations which offer affordable legal advice, so couples are aware of their options at the outset of a case.

Conclusion

If the consultation ultimately leads to new law, it will mean that all separating families will be told they must attend mediation before moving forward with court proceedings (save for limited cases involving domestic abuse or child safety issues).  Implemented properly, the benefits of the cost savings for the parties, expedition and reduction of pressure on the courts are obvious.   However, as part of the consultation process, it is imperative that the proposal is critically reviewed, to ensure that victims of domestic abuse are not inadvertently forced to mediate with former partners if they should not wish to do so. The views of Women’s Aid and Resolution should also be heeded, and it is hoped that legal signposting is utilised to ensure that families in the separation stages are getting the help which is best required for each individual case.

If you require advice and/or representation in respect of a divorce or separation contact our specialist family law solicitors by sending us an email, completing our online enquiry form or calling on 020 3811 2782