Government announces plans for mandatory mediation in family cases

On 23 March 2023 the Ministry of Justice, the Children and Family Court Advisory Support Service (‘Cafcass’), and the Lord Chancellor and Secretary of State for Justice Dominic Raab MP announced plans for the introduction of mandatory mediation for separating couples.

Keeping family disputes out of court

The announcement stated that: “In a major shake-up to the family justice system, proposals will see mediation become mandatory in all suitable low-level family court cases excluding those which include allegations or a history of domestic violence. This will mean separating couples have to attempt to agree their child custody [sic] and financial arrangements through a qualified mediator with court action being a last resort.”

As indicated, there will be exemptions to the mediation requirement. These will include not just cases where there has been domestic abuse, but also cases involving a child protection issue, and cases where the matter is urgent.

The rationale behind the proposals is both to save families, particularly children, from the trauma of court proceedings, and to reduce the workload of the courts, freeing them up to deal with those cases where mediation is not suitable. The Government expects that the plans could help up to 19,000 separating families resolve their issues away from the court.

If the parties are unable to agree matters in mediation then they will be able to proceed with an application to the court. However, the Government is considering whether the court should have a new power to make the parties make a statement to the court explaining their approach to mediation, and their position on the material issues at stake.

Carrot and stick approach

To make the plans work, the Government is taking a ‘carrot and stick’ approach.

The ‘carrot’ is the extension of the government’s Family Mediation Voucher Scheme, which will receive an additional £15 million in funding. Under the scheme separating couples are provided with vouchers worth up to £500 to help them solve disputes related to children through mediation.

The ‘stick’ is to impose penalties upon anyone who fails to make a “reasonable attempt to mediate”. The penalties would take the form of costs orders made by the court in any subsequent proceedings, which could include the costs of any attempted mediation.

Costs orders could, for example, be used against a respondent who did not made a reasonable attempt at mediation before court without a valid exemption, or against an applicant who did not attempt mediation before court on the basis of an exemption which the court finds later was not validly claimed.

Consultation

The proposals are subject to a government consultation seeking views on the proposals. The Government says that it is “particularly interested to hear from organisations representing separating families, family justice professionals, mediation service providers, other dispute resolution service providers and individuals who have lived experience of the family courts or mediation.”

The consultation runs until the 15th of June, and can be found here.

Mixed reception

The plans have met with a mixed reception from interested parties.

As one would expect, the Family Mediation Council (‘FMC’), which maintains a professional register of family mediators, is enthusiastic. Chair of the FMC, John Taylor, commented: “Family mediation can play a really positive role in producing better outcomes for separating families, and in reducing the burden on courts. This consultation shows that Ministers recognise its value in helping separating couples make parenting and financial arrangements without the stress and delays involved in going to court.”

In a similar vein Cafcass welcomed the plans, in relation to parental disputes over arrangements for their children. Chief Executive Jacky Tiotto said: “Cafcass strongly welcomes the focus on supporting more parents to agree how they will care for their children and spend time together without the need to make an application to the family court when they are separating.”

The Law Society, on the other hand, responded by arguing that early legal advice is the best solution for divorcing couples, rather than compulsory mediation. Legal aid for such advice was abolished by the Government in 2013. Law Society President Lubna Shuja said: “Mediation can be a vital tool for resolving many family disputes, but compulsory mediation in family cases is not a substitute for funded early advice, which can provide people with a reality-check and confidence that mediation is in their best interests. The risk is that compulsory mediation could force the wrong people into the process, at the wrong time and with the wrong attitude for it to be effective. They need to be ready to mediate and have a full understanding of what the process will involve.”

Meanwhile Resolution, the campaigning body representing 6,500 family justice professionals, gave a guarded response to the proposals. Resolution’s Chair, Juliet Harvey, said: “We welcome anything that can help families avoid court where it’s possible, safe and appropriate for them to do so. Mediation will help many to do this and can be a very effective method of resolving disputes. But it is not right for everyone, and works best when it is done voluntarily – forcing parents to choose a route that may not be suitable for them is not the answer.”

And Women’s Aid, the national charity working to end domestic abuse against women and children, also urged caution. Lucy Hadley, Head of Policy at Women’s Aid, said: “We already hear from women who have experienced abuse and are pushed down the mediation route – despite the fact they are experiencing post-separation abuse and control. If mediators don’t have a thorough understanding of domestic abuse – or even know abuse is a factor in a case – these processes will ignore unequal power dynamics, exacerbating the abuse women experience and putting them at further risk. We urgently need clarity on how the Ministry of Justice will ensure that all domestic abuse survivors will be kept safe”.

It is clearly essential that all interested parties make their views known to the Government, by responding to the consultation.