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Government considering cost shifting to promote mediation over family courts

Lord Chancellor Dominic Raab has suggested he is considering a cost shifting policy as the Ministry of Justice (MoJ) looks to steer private family law cases towards mediation and out of the family courts.

Speaking before the House of Lords constitution committee, the Secretary of State for Justice said that though the government remains committed to investing in the carrot that is mediation schemes, there also needs to be a stick to dissuade people from heading to the courts.

The policy – whether it be cost shifting or some sort of fee – is an aim to “[prevent] people going into mediation who double dip or have another crack just to see if they can get something better in court”, said Raab.

The government is set to prepare legislation on the matter “in due course”, with Raab adding he is “closely engaged” with Sir Andrew McFarlane, President of the Family Division.

“Unless there is a safeguarding issue, namely unless you’re at a risk of life or limb, now more than ever individuals should consider ‘almost anything but the family courts’, especially when it comes to children law applications,” said Sonia Rola, family solicitor and mediator, writing for Today’s Family Lawyer during Family Mediation Week earlier this year.

Discussing the benefits of mediation over the courts, Rola said:

“There are a range of boundless possibilities within family mediation in its very flexible and fluid forum. Parents can discuss openly together in private their child’s specific needs and what’s going to or not going to work for them, issues that the courts may not necessarily ask and/or cover or indeed even be interested in.

Family mediation can often help parents work on their communication; essentially family mediation could give parents the opportunity for them to be parents. This is a far more authentic way of parenting, being given the opportunity of a supported conversation in a safe space in private.

It is far more likely that during the process of family mediation both parents will be given an opportunity to consider and discuss how the child feels about their outcome, as well as this being cheaper and quicker method to resolve the child arrangements. It could also provide parents very much helpful signposting.

If a layer of complexity exists, there is also a possibility to co-mediate with another mediator, for example if there are different jurisdictions or laws to consider. Parents could also agree that it covers different jurisdictions, without the added expense of applying for mirror orders within different jurisdictions and therefore avoid even any further unnecessary cost and/or delay.”

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