Should mediation be compulsory in family cases?

Eye-watering delays, hearings vacated at the 11^th hour due to “judicial unavailability” and cases transferred out to ‘overflow courts’ – should there be any doubt, the family court system in England and Wales is on its knees. Could making mediation compulsory help improve matters?

Mediation has a number of benefits such as autonomy, speed and, perhaps most importantly, the ability to be creative and find an outcome that truly works for you and your family. Viewed in the round, mediation can help parties to achieve long-term and cost-effective solutions that help to preserve family relations and reduce acrimony.

Should mediation be compulsory?

It is not surprising, therefore, that both the government and the judiciary are keen to use mediation to filter out cases from a court system that is increasingly not fit for purpose.

In March 2023, the government launched a consultation on resolving private family disputes earlier through family mediation. One of the most significant changes proposed was the introduction of a requirement to make ‘a reasonable attempt’ at mediation before issuing proceedings unless an exemption applies.

Both Resolution and the Law Society have submitted responses to the consultation. Neither organisation supports a requirement for pre-court mediation. The reasons for this include the following:

1. Mediation is not a panacea and there are some cases where it will not be effective or appropriate. In particular, where there are allegations of domestic abuse, issues around controlling behaviour, or other safeguarding concerns, mediation may an entirely unsuitable and for such cases, the court’s assistance may be required.
2. Mediation is currently a voluntary process and can produce successful outcomes because both parties have bought into the process and are hopefully committed to finding a resolution. Making mediation compulsory goes against this.
3. Other forms of dispute resolution (such as collaborative law, round table negotiations, arbitration and private FDRs) may be more appropriate than mediation in certain cases and may be overlooked or not given due consideration if mediation is made mandatory.

The government’s response to the consultation is awaited.

MIAMs

Of course, under the current rules, before making a financial or children application to the court, an applicant is required to attend a Mediation Information and Assessment Meeting (known as a ‘MIAM’), subject to exemptions. However, the current scheme has come under criticism for essentially operating as a box ticking exercise simply to give one party the ability to make an application to the court.

In his speech at the Family Mediation Association Conference in September 2022, Andrew McFarlane, the President of the Family Division, suggested the following:

“…if there is to be compulsion, the compulsory event should be attendance at an ‘IAM’ rather than a ‘MIAM’. That is, the meeting to which both parents should be required to attend should be with a generalist professional who can impart information [‘I’], guidance and advice [‘A’] more generally about parenting after separation, or, as it may be, resolution of financial issues. The advice would include basic neutral advice about the law and the legal structure. It should, in my view, also include a description of ‘what normal looks like’, along the lines proposed in the [Early Intervention] model”.

It may be that replacing MIAMs with IAMs or similar would be a more effective way of diverting potential litigants away from the court rather than forcing them to mediate. Amendments to the MIAM process are already due to come into force in April 2024 (for example, reducing the number of exemptions that can be relied upon); it remains to be seen whether the government’s consultation will result in further changes.

What next?

Whether or not family mediation is made compulsory, the recent (non-family) case of Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 is likely to be indicative of the direction of travel. In that case, the Court of Appeal held that the court has the power to pause proceedings and make an order compelling parties to participate in any suitable form of non-court based dispute resolution process at whichever stage of the proceedings it considers appropriate.

Going forward, it may that the court is increasingly willing to make orders adjourning the proceedings until alternative dispute resolution methods have been explored, and for costs consequences to apply where reasonable attempts are not made to follow such orders. Any party considering issuing proceedings should therefore take time to familiarise themselves with the different ways of resolving family disputes at the outset of their case and seek advice from a specialist lawyer.

Written by Henry Dawson, Senior Associate, Burgess Mee Family Law