Plans for mandatory mediation to be scrapped

Plans to introduce mandatory mediation for separating couples may be scrapped according to reports this week. In March 2023 it was announced that couples may face mandatory mediation to avert court proceedings in order to ease the backlog on court services in a move the Ministry of Justice (MoJ) said at the time would “(ease) pressures on the family courts, and (ensure) the justice system can focus on the families it most needs to protect”.

Described at the time as a “major shake up of the family justice system” the plans were designed to protect thousands of children from “witnessing their parents thrash out family disputes through the courts.”

The plans are now set to be scrapped following widespread criticism from the family justice community. Although mediation in principle is regraded as increasingly preferential, family practitioners and mediators railed against the introduction of mandatory mediation, citing a potentially negative impact on access to justice.

President of the Law Society of England and Wales at the time Lubna Shuja said

“No form of dispute resolution should be mandatory. Attendance must be voluntary for it to be effective. Most couples try to avoid costly court litigation and delays to resolution. The types of cases that do require a court hearing or court process – and would be impacted by the compulsory mediation scheme – are complex in nature.

Complexity needs to be considered, otherwise these proposals could risk harm being done to vulnerable people who are legitimately seeking a court hearing.”

It has now come to light that the proposals, which were introduced by former Justice Secretary Dominic Raab, may be watered down, acknowledging the concerns of professionals. The mediation voucher scheme, which provides separating couples with vouchers worth up to £500 to help them solve disputes through mediation, has been extended until April 2025 with initial analysis indicating more than half of users have reached whole or partial agreements outside of court.

The duration of private family law cases involving children has almost doubled to 45 weeks since 2016 and it had been suggested that mandatory mediation would both reduce the burden on the courts, and minimise the impact on children seeing parents go head to head in court.

Echoing much of the sentiment shared previously Deborah Jeff, head of the Divorce and Family department at London law firm Simkins said

“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.”