Family lawyers welcome Private Family Law Early Resolution Consultation response

Family Mediation Week draws to a close with the publication of the government’s response to proposals to mandate mediation. Described by the government as an “ambitious package of reforms that will put conflict resolution, and children’s welfare, first at every stage of a separation” measures have been welcomed by practitioners. 

“Supporting earlier resolution of private family law arrangements: Government response” has been published today (26th January 2024). The response outlines a number of initiatives designed to provide greater access to legal advice at an earlier stage of a dispute. Proposals to bolster the role of mediators, introduce a new early advice pilot service an extend the current pathfinder pilot nationally are included.

Family lawyers and membership bodies have welcome the proposals. Resolution have campaigned for access to funding for early legal advice since the widespread withdrawal of legal aid more than ten years ago. Jo Edwards said:

“We welcome the announcement of a pilot for funding early legal advice and look forward to working with the Ministry of Justice to demonstrate how this can help separating parents find the right way forward for them and, where possible, reach agreement outside court.

“Resolution members are already helping people across the country do this every day and there is plenty of evidence to show the connection between couples receiving early legal advice and resolving issues on separation, in turn freeing up court time for the most needy cases (involving safeguarding issues or vulnerable people).

“We’re also pleased that the government has listened to Resolution and dropped proposals to compel couples into family mediation. Mediation can be extremely effective, but it’s not right for every couple and works best when it is entered into voluntarily. The proposals also risked making victims of domestic abuse feel that they had no option but to go into mediation.

“At the same time, it is important to recognise that for some, particularly where there are allegations of abuse, court will be the right way forward. Those using the family courts have seen increasingly significant delays over a number of years and outdated facilities, so we urge the government to ensure our courts are properly resourced in order to help those who rely on them.”

The Family Mediation Council are currently being consulted as part of the response on helping mediators undertaking MIAMs and mediation to improve their approach to identifying domestic and child abuse and supporting victims. Beverley Sayers, FMC Board member, comments:

“Too many separating couples currently see the primary route of taking their dispute to a family court, with all the costs, stress and delays that involves. Research shows that prolonged parental conflict has a long-term impact on the health and wellbeing of children and that adults find the court process stressful too.

“We welcome government action that further encourages separating families to resolve issues earlier through mediation, and make parenting and financial arrangements, without all the complications and expense involved in going to court. We also welcome the decision by Ministers to emphasise the essential voluntary nature of mediation in line with the views of hundreds of expert, experienced family mediators who helped shape the FMC’s response to the government’s consultation on the plans.”

Practitioners have similarly welcomed the move not to mandate mediation which, says Jessica Reid, partner and mediator at Dawson Cornwell, goes against the core principle that both parties come together voluntarily. She goes on to suggest that the voucher scheme could be reviewed to improve its efficiency and effectiveness.

“The voucher scheme is a far more sensible approach. Incentivising parties to mediate by reducing the cost of embarking on the process means that more separating couples will likely want to engage to see if it works. That is not to say the current voucher scheme is perfect. As it stands, the scheme provides families with a one-off contribution of £500 towards their mediation costs, but only with an accredited mediator and only in cases where the dispute relates to children.

“The scheme should be extended to encompass mediators who are not accredited to ensure wider access to justice, and should be open to all family disputes. A contribution of £500 also may not go very far. A voucher ensuring that an initial one and a half hour session is covered would be far more beneficial – a “try before you buy” system that will truly demonstrate the benefits to parties. The main issue around mediation is that many people are uneducated as to what it actually entails, and this would certainly help to demystify the process.”

Law Society vice president Richard Atkinson was also grateful the government has listened to the concerns of practitioners.

“Mandatory attendance for mediation could negatively affect the outcome of a dispute. Making mediation voluntary means that domestic abuse victims can be referred to services that can guide them through the right dispute resolution process for them. We are pleased the government will be using early legal advice to ensure families get the justice that’s right for them, whether it’s mediation, litigation or non-court dispute resolution. Having the conversation early could mean a dispute is settled sooner.”

“The family court system continues to face an uphill battle, with backlogs and delays still prevalent, but we hope these new reforms will go some way towards alleviating the stresses for families seeking justice.”

Striking a more practical note, Peter Burgess, partner at Burgess Mee Family Law, said:

“These are common sense measures and it is very pleasing to see the government listening to practitioners and moving away from the mistake that compulsory mediation would have been. Mediation is critical but it isn’t a panacea. It remains to be seen exactly how this scheme will be implemented or who will be eligible, and there will be a long hard road ahead to rebuild a family justice system which is fit for purpose once more.”

Deborah Jeff, head of the Divorce and Family team at Simkins concurs:

“It is eminently sensible that the government has listened to the feedback of solicitors and mediators and will scrap its plans to force couples to mediate. Whilst it’s sensible to look at ways of resolving financial disputes and arrangements for children in shorter time frames, enforced mediation is not one of them. The current system of investigating whether mediation is appropriate in any given case works. There is a host of reasons why a case may not be appropriate, not least when there has been domestic abuse. That abuse can take various forms, including physical, emotional, psychological and financial.

“Parties must come to mediation feeling safe and with parity of power. Often, the imbalance of power isn’t immediately obvious and clients of both sexes can feel uncomfortable sharing what has happened in their relationship, which would change advice regarding the form of dispute resolution that is appropriate. The solution is to have a family justice system that works, rather than seek to divert inappropriate cases to mediation.”