Separating families facing mandatory mediation under new plans

Mediation is set to become mandatory in thousands of suitable low-level family court cases in what has been described as a “major shake-up to the family justice system”.

This will mean separating couples have to attempt to agree their child custody and financial arrangements through a qualified mediator with court action being a last resort.

The Ministry of Justice (MoJ) said the move could impact as many as 19,000 families, all while “reducing backlogs, easing pressures on the family courts, and ensuring the justice system can focus on the families it most needs to protect”.

The mandatory mediation plans exclude cases where there are allegations or a history of domestic violence. Indeed, the MoJ said the move “will allow the family courts to better prioritise and provide protection for the most serious cases with safeguarding concerns where it is not an option, such as domestic abuse and child safety”. It is estimated that 36,000 vulnerable families each year will benefit from faster hearings and quicker resolutions as a result.

The overhaul could also introduce a new power for judges to order parents to make a reasonable attempt to mediate with possible financial penalties if they act unreasonably and harm a child’s wellbeing by prolonging court proceedings.

The Family Mediation Voucher Scheme, which provides separating couples with vouchers worth up to £500 to help them solve disputes through mediation, will also be extended until April 2025. An analysis of the first 7,200 users of the scheme shows 69% of participants have reached whole or partial agreements away from court.

Family mediation can play a really positive role in producing better outcomes for separating families, and in reducing the burden on courts,” said Chair of the Family Mediation Council John Taylor, adding:

“This consultation shows that Ministers recognise its value in helping separating couples make parenting and financial arrangements without the stress and delays involved in going to court.”

Cafcass Chief Executive Jacky Tiotto said:

“Cafcass strongly welcomes the focus on supporting more parents to agree how they will care for their children and spend time together without the need to make an application to the family court when they are separating.

We work with in excess of 145,000 children every year and we see the harm to which children are exposed in long adversarial court proceedings. Programmes that encourage parents to consider together what is safe and in the best interests of their children help to keep the focus on what children want and need as they grow up.”

Others, however, offered caveats to the government’s plans. “This is positive news but we need to ensure that it doesn’t become another tick box exercise,” said Zoe Rose, Family Team Leader at Hedges:

“Careful consideration will need to be given to how information about what happened during mediation is shared with the court if a settlement is not reached to avoid discouraging couples from entering fully into the process, but at the same time ensuring judges have sufficient information to understand whether anyone should be penalised for lack of engagement.”

Rebecca Cockcroft, co-head of family law at Payne Hicks Beach, said that while the plans are welcome, “there will always be cases that are not suitable for mediation”, adding that “in such instances, access to the family courts will remain imperative”.

Iwona Durlak, Senior Partner at IMD Solicitors, described compulsory mediation as “controversial”, suggesting forced solutions are not necessarily lasting ones. This was a sentiment echoed by Law Society President Lubna Shuja

“The best way to get couples into mediation is to provide them with early legal advice, but the government has not taken this on board.

Mediation can be a vital tool for resolving many family disputes, but compulsory mediation in family cases is not a substitute for funded early advice, which can provide people with a reality-check and confidence that mediation is in their best interests.

The risk is that compulsory mediation could force the wrong people into the process, at the wrong time and with the wrong attitude for it to be effective. They need to be ready to mediate and have a full understanding of what the process will involve.”

Shuja went on to note the importance of ensuring compulsory mediation does not give rise to serious concerns that vulnerable individuals and their children might be further exposed to risk or taken advantage of:

“There’s a danger that without early advice, a mandatory mediation process may fail to recognise [domestic abuse] victims and force them into a process that empowers their abuser.

Although the current plans for mandating mediation would exclude cases where there is a history, or allegations, of domestic abuse, early legal advice would help make sure previously unidentified cases are not put forward for mandatory mediation.

In some instances, the nature of coercive control in domestic abuse will make this difficult to spot.”

Lucy Hadley, Head of Policy at Women’s Aid, offered a similar appraisal:

“We already hear from women who have experienced abuse and are pushed down the mediation route – despite the fact they are experiencing post-separation abuse and control. If mediators don’t have a thorough understanding of domestic abuse – or even know abuse is a factor in a case – these processes will ignore unequal power dynamics, exacerbating the abuse women experience and putting them at further risk.

We urgently need clarity on how the Ministry of Justice will ensure that all domestic abuse survivors will be kept safe, and allegations of abuse will be properly investigated through fact finding hearings.”

The proposals will be subject to a government consultation which will run for 12 weeks from today, closing on 15th June 2023.