Justice Secretary Dominic Raab has re-iterated the government’s desire to make mediation a “default” option when it comes to family proceedings by suggesting that parents would face financial penalties for bringing unnecessary claims to court.
The thinking is being driven by the view that too many parents are bringing claims to an already overstretched courts system motivated by personal revenge rather than the children’s best interests.
Alongside penalising spurious claims, another option understood to be under consideration is measures to make it easier to award substantial legal costs against the parent thought to be abusing the court system for their own interests.
The government are keen to encourage the use of mediation and avoid court, not least because evidence suggests that it works. Research into family, business and other civil disputes shows that more than 70% of those using mediation services will resolve their issues outside of a courtroom
The most recent Mediation Audit conducted by the Centre for Effective Dispute Resolution (CEDR) suggested the overall success of commercial mediation is very high, with 93% of cases being resolved on the day or shortly afterwards.
In August the government committed an additional £800,000 toward the Mediation Voucher scheme, which provides a £500 voucher toward the cost of mediation
The Ministry of Justice recently closed its call for evidence into “Dispute resolution in England and Wales.” Lord Chancellor, Robert Buckland QC MP, said
“The Responses will shape future reforms to civil, family and administrative justice, with Ministers determined to help more people resolve their issues without the stress and cost of a court case. It will examine whether new technologies, as well as services such as mediation and conciliation, could provide smarter and less adversarial routes for finding resolutions.”
Commenting on the proposals, a Law Society spokesperson said:
“There seems to be a belief among many people that lawyers necessarily mean courts, when in fact the opposite is the case. The evidence of the past decade is that taking lawyers out of the equation led to fewer cases going to mediation, and more cases going to court.
“With parents acting without advice and representation, they often bring misconceived arguments and irrelevant issues to court.
“The latest statistics have shown there are 84,458 outstanding private family law cases and 21,260 public family law cases, with those cases taking an average of 41.5 weeks and 44.4 weeks to conclude.”
“It is evident that implementing higher costs penalties won’t make a difference to unrepresented parties as there are no legal costs if you don’t have a lawyer.”
“The best way to keep more cases out of court and to reduce the number of inappropriate applications is not to introduce financial penalties, but to ensure that all separating couples can get legal advice and representation to guide them through the process.”