Resolution and Law Society shun mandatory mediation for divorcing couples

Resolution and the Law Society of England and Wales have both separately said divorcing couples should not be subject to mandatory mediation, with the latter citing barriers in place to attending court as “likely to deny access to justice”.

This comes in response to a government consultation launched in March seeking views on supporting earlier resolution of private family law arrangements.

The Law Society

In its response to the consultation, the Law Society called on:

• Mediation to not be mandatory in divorce cases;
• Early advice for all (subject to means testing)
• Support for domestic abuse victims as they go through the court process, which has not been detailed in the government’s proposals;

“The family courts are experiencing significant backlogs and delays. We are pleased the government is seeking early resolution for families,” said Law Society President Lubna Shuja, adding:

“Delays have a detrimental impact on families seeking justice and can mean parents are prevented from seeing their children. This leaves children without the stability they need to thrive.

The problems facing the family court will not go away overnight, but with a robust framework, early legal advice and greater options for divorcing couples, there is more chance of early resolution.”

However, while the Society understands the value of mediation in amicably resolving disputes, they do not agree with its mandation:

“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.”

Commenting on support needed for victims of domestic abuse, Lubna Shuja said:

“The Domestic Abuse Act has been a positive step forward in the government improving the protections available for victims.

While the government has recognised that cases concerning allegations of domestic abuse need to be an exemption to the scheme, these cases cannot simply be removed.

Domestic abuse victims need to be referred to services that can protect and support them through the court process. This is not detailed in the government’s proposals.”

Resolution

Grant Cameron, the new National Chair of Resolution, says:

“We believe that the needs of families would be more appropriately and better met, and demand on the family courts would be reduced, by helping more former couples and parents make informed choices to find the route that gives them the best chance of reaching constructive, lasting outcomes about child arrangements and family finances on divorce. This should include the provision of early, tailored legal advice, to encourage out of court solutions and give them the best chance of success.

We welcome anything that can help families avoid court where it is possible, safe and appropriate for them to do so, and understand that mediation will help many families, and can be a very effective method of resolving disputes. However, it is not a panacea, not right for everyone and not the only way of resolving issues.”

It must be said that Resolution broadly welcomed the consultation proposals around attendance by parents at a co-parenting programme where it is safe to do so and will not cause harm to the child.

However, they believe more could be achieved by the current system, supported by public education, by the proper and consistent enforcement of Mediation Information & Assessment Meetings (MIAMs) at the gatekeeping stage and beyond, and use of existing court powers to encourage the use of out of court dispute resolution. Grant Cameron continued:

“Mediation is a successful dispute resolution process in suitable cases, but the collaborative process, round table negotiations, arbitration (both the children and money schemes), private FDRs and other forms of out of court dispute resolution may be more suitable or alternative options in some cases.

The model proposed is likely in practice to work against the provision of information on all options which may be suitable. There is a need for a semantic shift to the most suitable alternatives in the pre-court space, rather than forcing people down one route.”

In response to the consultation, Resolution set out its main recommendations for change, including:

Provide families with access to legal advice

Tailored legal advice should be available as an integral part of encouraging the use of out of court dispute resolution and maximising its chances of success, and to manage people’s expectations before the making of an application to court.

Expand the scope of the existing Family Mediation Voucher Scheme voucher scheme

Vouchers should be available for mediation about finances on divorce, and for the drafting of consent orders, as well as mediations relating to child arrangements. The mediation process differs from the court process and the current restrictions can make the mediation process more complex and restrictive than necessary.

Provide sustainable legally aided family mediation

Resolution has long called for a realistic increase in legal aid rates paid for family mediation; a separate fee element for child inclusive mediation where the mediator meets with the child; and properly funded MIAMs.

It is essential to have a simplified process (to explain, evidence, apply and audit) to access eligibility for family mediation and to increase the number of families accessing/benefiting from it.

Replace Statutory Mediation Information & Assessment Meetings (MIAMs) with Advice and Information Meetings (AIMs) delivered by a range of suitable family justice professionals

Giving both parties access to a broader and more rounded AIM would provide advice on options/processes and early legal information. It should be earlier in the separation process, before minds are set on court and an application to court is considered, about the different ways of proceeding and to help couples and parents make an assessment of what might fit best for their circumstances and produce a fair and lasting outcome.

Grant Cameron concluded:

“Our members are helping families avoid court every day – the decrease in legally aided mediation numbers since public funding was removed for the majority of family cases is testament to the role tailored legal advice can play here. Government should provide support for early legal advice so that separating couples are better equipped to make choices about important issues like family finances and what arrangements are made for their children.

Whilst we support anything that helps inform families about the solutions available to them, we have a real concern that forcing couples into mediation could reduce the likelihood of success. It also raises concerns where the risk of domestic abuse, particularly controlling or coercive behaviour, or other safeguarding issues are at play.”