Mediation will not be compulsory for separating couples - where do we go from here?   - Family Law Partners

Mediation will not be compulsory for separating couples – where do we go from here?  

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Following the Government’s 2023 consultation on the earlier resolution of private family arrangements following separation, last month the Ministry of Justice announced that it would not continue its proposed plan to make mediation mandatory. A key concern and reason behind this change being the adequacy of proposed safeguards to protect victims of domestic abuse, with the Ministry instead confirming that it will work with the Family Mediation Council to improve training for mediators on abuse and identifying victims. 

However, with divorce and separation continuing to increase, and with the family courts under more pressure than ever before, is this decision welcomed by family law practitioners? The Government’s mediation voucher scheme has so far helped over 24,600 families resolve their issues away from court, and so there clearly is demand for mediation as an alternative way to resolve family disputes, but will the Government’s U-turn on making this mandatory impact on people’s views of and engagement with mediation? Polly Dallyn, and our team of family mediators, explore further in this piece.  

What do we do now? How do we solve this? Where do we go from here? These are all questions that separating couples ask themselves and each other when they arrive at the difficult decision that their romantic relationship has broken down and they would be better moving forward separately.  For parents, these questions may carry even more importance as they must decide how best to navigate their separation with one key priority: the wellbeing of their children.  

The challenge for the family justice system, is how best to protect the wellbeing of children and support parents as they work through their separation in a world where every family and every separation is different.  This is a question that the Government has recently grappled with in their Private Family Law Early Resolution Consultation, and a press release was published on 26 January 2024 setting out their proposals following the consultation. 

Eyebrows were raised amongst family law professionals at the Government’s decision to publish their press release during Family Mediation Week, when one of their key outcomes from the consultation was to confirm that they would be abandoning the plan to make mediation compulsory in private law children proceedings.  The worry was that this would send a message to parents that the government do not take mediation as a process option seriously and are signposting parents to the courts rather than to alternative ways of resolving the issues between them.  

Whilst the headlines (and certainly the timing) were indeed unfortunate, the outcomes of the consultation are on the whole positive and set out the beginnings of a roadmap towards a better system for supporting families.  The steps that are proposed should help us all as family law professionals in continuing to spread the word on mediation and its benefits for families, and ensuring that mediation is a process that is available for those families who would like to try it.    

Changes to Part 3 of the Family Procedure Rules 2010 come into force in April 2024 (partially from 8 April and fully from 29 April) and emphasise that the Court will scrutinise from the outset of a case and on an ongoing basis, whether parties to court proceedings have given sufficient consideration to non-court dispute resolution processes (NCDR) before starting litigation.  The definition of NCDR has now been widened to mean “methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law”. There will be fewer reasons not to attend Mediation Information and Assessment Meetings (MIAMs). Courts will be able to consider the possibility of making a costs order against a party who does not attend a MIAM without good reason and adjourning hearings to “encourage parties” to “undertake non-court dispute resolution”. 

Our own mediation team have all been reflecting on the news and it is encouraging that the recommendations of the Government and their onward plans engage with principles and ways of working that we have long been promoting.   

To look first at mediation.  Whilst we would all encourage as many parents as possible to explore mediation and the ways in which it might help them to answer those all-important questions at the outset of their separation or later on, it must not be forgotten that one of the key principles of mediation is that it is voluntary.  Mediation is not an easy way out.  It is a challenging process and for it to be successful, parents must come to the table by choice and with an open mind.  To make mediation compulsory, would not only potentially place individuals and families at risk where there are safeguarding concerns or dynamics within the relationship that make mediation unsuitable, but would also risk many parents being forced through a process that may not be right for them.     

That said, mediation can be a really positive experience and can save many couples hours of time, thousands of pounds, and years of conflict.  There are three elements to the Government’s recent proposals which we welcome in terms of helping to get couples into mediation and making it work for them.  The first is the extension of the voucher scheme, which provides parents with £500 to use towards the cost of their joint mediation sessions when discussing their children.  The statistics on how many parents this scheme has helped are encouraging and show that by providing funding, the government can take away one of the barriers to mediation.  The scheme allows parents to give this process a try, and to engage with one another with the help of a mediator, without first having to have the often very difficult conversation about how they will pay for it (although the voucher scheme will not cover the costs of the initial MIAM which clients must fund privately if they are not eligible for legal aid).   

The second very helpful proposal from the Government is the provision of early legal advice for parents.  This is a most welcome change after many years of struggling with the loss of public funding for family cases and seeing first-hand the impact that this has on parents.  Not only would early legal advice help parents by allowing them to understand their rights and responsibilities in relation to their children and finances, but it should also help to raise awareness for process options and what they look like.  At Family Law Partners we feel strongly that one of the most important elements of an initial meeting with a new client is to go through with them all of the options available for how to resolve their issues.  It is often the case that the questions: Where do we go?  What do we do?  How do we solve this? are at the forefront of people’s minds when they meet with a solicitor.  It is often the first time they have ever had to consider legal processes and there is no roadmap giving a clear direction and showing them different options and what their journey might look like.   

For mediation clients, this focus on process options has been supported through the Family Mediation Council’s guidance on MIAMs or intake meetings, where it is the responsibility of the mediator to ensure that as well as explaining mediation, they have also taken each individual through the other processes available to them.  Giving people options is central to allowing them to understand that they are not stuck, they are not forced into one process, and if their initial attempts to resolve matters do not succeed, they do not have to go to court.  It is our view that an exploration of process options should be central to that first meeting and we hope that when the Government does make further progress on the early legal advice pilot, those solicitors giving the advice will ensure they create time to go through process options as well as the law. 

The third important element of the Government recommendations which has perhaps not had the focus that the early legal advice plan has enjoyed, is the reassurance that mediators will now be able to apply for advanced DBS checks.  This has been a stumbling block in the growth of mediators who are able to offer child inclusive mediation as whilst many have been able to work around this by using their volunteer work or other work with children to secure advanced DBS checks (our own child inclusive mediator, Hazel Manktelow, has an advanced DBS check by virtue of her role as a school governor) it has not been possible to apply for the checks purely on the basis that you are a mediator offering child inclusive mediation. Resolution, the national organisation for family lawyers, who provide many training courses for solicitors looking to expand their skills and qualifications, have paused their child inclusive mediation training due to the inability of solicitors to apply for advanced DBS checks.  It was felt that in order to ensure children are safeguarded if they are to be involved in the mediation process, solicitors offering this service must have an advanced DBS check.  Without that, some parents may be reluctant to involve their children in the process and trust mediators to meet with their children alone and to work with them in a child appropriate manner.  We are hopeful that Resolution will now restart their child inclusive mediation training so that more of our mediators may offer this as part of the process.  This will go hand in hand with the Government’s aim of hearing the voice of the child and giving more children the opportunity to say what they think in a safe and controlled environment. 

Overall, the Government recommendations and plans are positive and we hope that the unfortunate timing of the announcement and the headlines that ensued will not dampen the enthusiasm for these attempts to improve the family justice system for parents and children alike.  A key to the success of these new ideas will be in raising awareness and ensuring understanding.  One of the ways we feel that this may best be achieved is by looking carefully at the language we are using when sharing the news of the Government recommendations and when talking to parents about process options.  There is too much jargon.  It is hard to understand, and in court proceedings it can pit one parent against the other. Another key focus for family justice professionals now, and something we at Family Law Parents are actively involved in, must be to recognise how our language impacts those we work for and with and how we may make the work we do more accessible through the words we use. 

In November 2023 we joined a select group of firms at the launch of the Family Solutions Group’s (FSG) report ‘A Child’s Right to Matter’ at the House of Commons. As a team we are actively taking steps to improve the experience of children and families before any application is made to the family court. Our mediators are working with fellow lawyers to help increase parliamentary awareness and the development of the creation of a new approach to include child consultation routinely within the work we do, across all forums, given that the research shows children need a voice and to feel included and informed about decisions made that impact them when their parents separate – a project that will develop in 2024. 

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