Mediation – ‘It is a time of significant change in family law’

Now the dust is settling after the government’s announcement that it won’t bring in changes to force separating couples to mediate, consideration is being given on what that means going forward.

To effectively end with the headline announcing status quo, after a year-long consultation on compulsory mediation, could send a message that it’s still going to be ok for one half of a divorcing couple to force the other down the path of court, while a partner who’d prefer an alternative route can’t do much about it. But beyond that headline, there are other changes on the way, that could make a big difference on the ground. From April, the Family Procedure Rules are changing, and the new guidance could – if properly applied – effectively compel ex-couples to try anything but court (with the exceptions of cases involving abuse, safety concerns, or where an urgent application is needed).

The changes in the Family Court echo a landmark Court of Appeal ruling last November that allows judges to order Non-Court Dispute Resolution, overturning a previous ruling effectively blocking that. Churchill v Merthyr Tydfil Borough County Council (2023) confirms that Civil Court judges can stay proceedings to give way to NCDR, provided it doesn’t block the right to return to court. The way is also cleared for cost orders to be made against a party who has obstructed NCDR. Both of those aspects now enter the judges’ toolkit in the Family Courts (although costs awards are very rare in family courts). An additional change in the family division is that the requirement for a mediation assessment meeting before a Family Court application, is tightened up, with exemptions restricted (those I mentioned previously remain).

So, away from the government’s deliberations on compulsory mediation, the courts have effectively delivered a sensible position that compels litigants to consider and try NCDR, or risk court forcing it anyway and even penalising them for avoiding it.

The issue arises as to whether the courts will actually enforce this. It will be dependent on how much judges choose to use their new powers. Interestingly, as a family mediator, I had already encountered cases pre-Churchill where a couple in dispute had been ordered by a judge to go away and mediate. Even though it was in a court order, as a mediator, the first thing to say to clients in that situation is that they cannot be forced to mediate, because it is a voluntary process, but they do need to think through how they would explain that to the judge when they’re back in front of them. In the experience I had, it proved to be a very helpful way of getting engagement in what turned out to be an effective mediation, with the clients able to go back to the judge with an agreement. Not compulsory mediation, but thereabouts.

So, now they all can, how much will judges push cases away from court? There is apparently going to be awareness training to encourage the changes to be embraced. And there’s a hard reality that gives a practical imperative for cases to be pulled away from court, which is the ever-growing backlog and a system struggling to cope. The latest data from the Ministry of Justice shows it takes an average of 45 weeks for a family case to conclude through the courts. All family lawyers know of cases that can go on for an awful lot longer than that. One judge I spoke to said: “No-one should underestimate the frustration Judges have that many of the cases we deal with should never have seen the inside of a court.”

Mediation is much quicker and cheaper (if you’re paying for lawyers, I’ll come back to this) than going to court. So, how many separating couples are going that way, rather than court, out of choice?

One measure is take-up of the Government’s Mediation Voucher, which gives £500 for couples discussing child arrangements. As of December 2023, 24,600 couples had taken up the offer since it was introduced in 2021. Research from the Family Mediation Council shows the voucher scheme has been a powerful incentive to mediate, and it’s been successful. Around 70% of those who took it reached full or partial agreements away from court, and half of the voucher users said they would not have considered mediation if the scheme hadn’t been in place. So, the mediation voucher has certainly been a help in getting people into mediation and raising awareness of it.

Otherwise, the most recent data I could find on the number of mediations, was a survey by the Family Mediation Council that suggested registered mediators did 37000 in 2019. It’s not clear how that figure may have changed since the introduction of the mediation voucher.

What about the number of cases that end up in court. Well, that’s growing. Around 56,000 cases go to the family court over child arrangements every year, according to government statistics. The total number of children caught up in ongoing family arrangement cases almost doubled in four years from 42,009 in August 2018 to 85,706 in 2021 (HMCTS management information).

Which brings us back to the issue of mediation being cheaper than court. Why is the number going to court increasing if mediation costs less? Well, it is cheaper, but only where you’re saving the cost of expensive lawyers. Being a litigant-in-person is free, apart from court costs. And there has been a massive rise in the number of litigants-in-person. The Guide to Family Court Statistics published by the government in 2021 suggested in almost half of court cases involving children’s issues only, neither party had legal representation. Across all family cases, data suggests 80% involve at least one litigant in person. Why does this matter? It means people are wandering into court, perhaps involved in an abusive situation, without understanding the process, nor having the support, knowledge, or ability to represent themselves (and their children) effectively, and that has an impact on length of process and outcomes. This situation has been concerning family lawyers for a long time. Many see a direct link between the family court backlog (which was growing before Covid) and the abolition of state aid for all private family law cases in 2013.

There IS legal aid for mediation, but as long as it is not in the general consciousness as a mainstream and, possibly/probably, better option, many cases will get to court without those involved having a clear understanding of the impact of that route, or the alternatives. Since 2013, the number of legal aid mediations every year has halved, to just over 7000.

Senior lawyers have been calling for a reinstatement of legal aid for families, to address the flaws around direct access. Well, as part of its mediation review report, the Ministry of Justice has announced there will be schemes to pilot early legal advice. There is currently no detail of the scope or scale of these, so this is an area to be watched.

There is one more significant factor that is changing the family courts, and that is the opening up of them to media scrutiny. This change has been led by journalists pushing for greater transparency, with concern about what goes on behind closed doors. As of the start of this year, sixteen courts now allow journalists in to report on proceedings. There are strict rules of anonymity on reporting, but nonetheless, the prospect of losing the privacy previously assured in family court may lead to some – particularly high profile cases – opting instead for mediation or other private forms of NCDR behind closed doors.

So, in summary, it is a time of significant change in family law. New drivers to guide separating couples away from court, are coming from government policy and spending, judge-led change, and media pressure. These are all shifting the systemic balance away from court being the default route – the go-to “threat” at least – with other forms of resolution described as “alternative”. The A-word is one that many, including the President of the Family Division, Sir Andrew MacFarlane, have wanted to see dropped for some time, and it seems the phrase ADR has now been swapped out for NCDR.

These are all moments and shifts on a journey to a change in public attitudes. That takes a long time. Perhaps we are at a tipping point? Raising awareness of alternatives to court is part of good practise and regulated responsibility for those who work with separating families. So, what is the message?  It’s important to acknowledge that mediation is not appropriate for every case. For mediation to be fair, safe and effective, there needs to be a level playing field for both sides. Sometimes that is not possible, in cases of abuse or refusal to engage or disclose. The courts can deal with those. But where they are not factors, supporting people through the most difficult time of their lives, with compassion and curiosity, enabling them to be clear on what is best and right for them and any children, taking responsibility for their outcome and making decisions together with respect for themselves and each other, is not just the least harmful way through a divorce, it’s also the best way of ensuring all those affected are onside in the outcome, finding a way to a new normal that can be positive.

I’ll leave the last thought to someone who messaged me on X-Twitter about the impact on him of his parents’ divorce, many years ago. He is 73 and wrote: “I am still scarred by my parents’ separation when I was 16. I have (had) three brothers and our various wives/partners are convinced we were all damaged by this experience.” There is so much awareness now of the far-reaching impact on children of an acrimonious divorce. Front and centre for all involved and those working in this space has to be – how do we minimise that?

Written by Joanna Gosling, Senior Associate Mediator at Irwin Mitchell and also the host of the British Family Law Awards in January 2024.