Family Mediation should be compulsory says Ministry of Justice Consultation
On 23 March 2023 the government announced proposals to steer families away from the courts and towards family mediation instead.
Under current rules, the person applying for a Court Order is required to attend a Mediation Information and Assessment Meeting (known as a ‘MIAM’) before applying, except if certain exemptions apply, but there is no requirement to engage in mediation beyond that appointment.
The motives are undoubtedly financial. Underinvestment in the Court service combined with the withdrawal of legal aid in all but a few cases has led to lengthy delays as many members of the public are forced to represent themselves, therefore taking Judges far longer to deal with their cases. That being said, the beneficiaries of these changes are likely to be the families involved and, more specifically their children. Together with our dispute resolution peers in the family law community, our team welcome this shift which will mean that fewer families end up in lengthy, expensive court proceedings.
Family mediation involves a professionally trained mediator who will listen to the specific circumstances of the individual family and help them set their own agenda for negotiations, at their own pace. Children of a suitable age can also give their views, bringing their voice into the process. Mediators do not provide relationship counselling as keeping couples together is not part of the brief. Instead, mediators enable couples to retain control of their decision making whilst guiding them through the different options for their separation and divorce. When a suitably skilled family mediator is instructed, even the most seemingly entrenched disputes can be resolved. In some cases, very quickly.
There are however some cases that simply cannot be resolved in mediation, even with a highly experienced mediator and the best intentions of one or both of the participants. A history of domestic abuse, safeguarding concerns and urgency are all valid reasons that mediation will not be appropriate and these cases, rightly, will be able to go straight to the Courts.
There are a number of fundamental principles of mediation and one of them is that the parties come to the process voluntarily. Being compelled to attend would not appear to fit in with this principle at all. It will therefore be interesting to see how often such cases can be resolved once the mediation process begins.
Costs are another important consideration, and it is widely known that, in the words of Baroness Shackleton of Belgravia, “divorce practitioners like me make a fortune in arguing”. Mediation is already far more cost effective than Court proceedings and the continuation of the hugely popular Family Mediation Voucher Scheme for another two years until 2025 that was also announced will make it even more so. To date the scheme has helped over 15,300 families and it is anticipated that it will continue to grow. An analysis of the first 7,200 cases showed that 69% of families using the voucher reached whole or partial agreements away from court.
There is no doubt that mediation, along with other methods of resolving disputes in an amicable way will continue to grow and this cannot be a bad thing for everyone involved.