Early advice, not compulsory mediation

The MoJ consultation on ‘Supporting earlier resolution of private family law arrangements’, which closed last week, suggested mandatory mediation for all suitable family cases—excluding any involving allegations of domestic abuse. Judges could order parents to make a reasonable attempt to mediate, with powers to impose financial penalties where parties acted unreasonably. Mediation for both children and finance arrangements would be fully funded by the government.

However, the proposals were rejected by family lawyers’ group Resolution, as well as the Law Society. Both groups advocated expanding access to legal aid and early advice for all, noting this can often make separating couples more realistic, deterring them from pursuing unreasonable litigation.

Divorce solicitor Katie McCann, managing partner at Lowry Legal, said: ‘The opposition to the government's position on this is totally valid.

‘Mediation needs the consent of both parties participating in the process for it to work. It cannot be forced.

‘Some people are in domestically abusive relationships—no matter their level of assets, this should be vetted at an early stage. The removal of legal aid from this space has, over a number of years, eroded access to justice. It is arguably the removal of this funding which has led to the rise in litigants in person and in turn the bottleneck of cases that the courts are seeing, which has resulted in the formulation of this proposal from the government.’

Grant Cameron, national chair of Resolution, said: ‘We have a real concern that forcing couples into mediation could reduce the likelihood of success.

‘It also raises concerns where the risk of domestic abuse, particularly controlling or coercive behaviour, or other safeguarding issues are at play.’

Law Society president Lubna Shuja said: ‘We are pleased the government is seeking early resolution for families.’

However, she warned that ‘no form of dispute resolution should be mandatory’.

Gemma Davison, partner at Stowe Family Law, said mediation ‘is not an easy option, nor one that is appropriate for everyone and should not be mandatory to achieve a political agenda’.