The Lord Chancellor Dominic Raab announced proposals this week for mandatory mediation for divorcing couples before an application can be made to court for most private law children cases and contested financial remedy cases. Refusal to mediate would result in costs sanctions. The mediation would be fully funded for children cases. The government is seeking views on how compulsory mediation for financial remedy cases should be funded.
The Ministry of Justice (MoJ) consultation, Supporting earlier resolution of private family law arrangements, notes that, while the government’s mediation voucher scheme has had a 69% success rate (13,500 families since its launch in March 2021), about 55,000 families end up in the family courts each year, often with ‘protracted proceedings that put prolonged stress on all involved’. Consequently, it aims to ‘empower judges to hold accountable those who do not engage seriously with mediation, and who draw proceedings out unnecessarily’.
The consultation closes on 15 June.
However, family lawyer David Burrows, solicitor-advocate & NLJ columnist, said: ‘I was involved in setting up the first “conciliation service” in Bristol in the 1970s.
‘We always assumed it would be government-funded, and voluntary—obviously. Mediation helps couples to reach agreement. By definition that cannot be forced. The government needs to put much more money into publicising and then running any scheme. It has never done this more than quarter-heartedly.’
Law Society president Lubna Shuja said: ‘The best way to get couples into mediation is to provide them with early legal advice, but the government has not taken this on board.
‘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.’
Shuja acknowledged that the current proposals would exclude cases where there is a history of, or allegations of, domestic abuse, but expressed concern that cases of this may not be identified without early legal advice, particularly, where the abuse takes the form of coercive control.
Welcoming the proposals, on the other hand, James Hayhurst, founder of the Positive Parenting Alliance, said: ‘Family separation and divorce is one of the greatest, least-recognised health risks to our children.
‘So, we welcome the government's latest initiative to help separating families before they land up in a family court. And we encourage the government to go even further. Mediation and much earlier, accessible support for all families and children are much better ways for most parents to deal with one of the most stressful moments in their entire lives. If we're serious about protecting our children from harm, that's where our money is best spent in future.’
Bar Council vice-chair Sam Townend KC said the Bar welcomed the opportunity to focus on the outstanding case backlogs in the family justice system.
However, he also expressed caution: ‘The additional money to support mediation is welcome and we will consider the issue of making mediation mandatory. Provision for mediation without allowing for prior legal advice is unlikely to be generally successful and may, in cases where there is a real discrepancy in resources, be detrimental.’
