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Family professionals do not support compulsory mediation

Lawyers and mediators have said that, whilst they support the government’s aspiration to get more separating couples to sort out their children and financial disputes outside of the court arena, they cannot give their backing to compulsory mediation.

Compulsory mediation

Bradie Pell. Partner and head of Graysons’ family team

The government plans to force most couples with low-level family disputes (not including domestic violence and child protection issues) to take part in family mediation before they can go to court.

It is hoped that the plans will reduce pressure on the justice system, in which children issues are currently taking an average of just under one year to resolve, and protect children from seeing their parents in battle in court. Figures show that in the first quarter of 2023, private law children cases took an of average to 47 weeks to reach a final order.  That has been rising year on year and has more than doubled since the end of 2016, when the figure was just under 22 weeks.

Family professionals see mediation as helpful in the right circumstances but don’t want it to be made compulsory.  They also question why the consultation has only focussed on mediation when other forms of non-adversarial dispute resolution, such as collaborative law, early neutral evaluation and arbitration are available.

Caroline Bowden, a practicing mediator, director of the Family Mediation Council and chair of the Family Mediators’ Association, has expressed concerns that one of the core principles of mediation is that it is voluntary, and making it compulsory would breach that principle.   Chair of the family law group Resolution, Jo Edwards, says: “The suggestion that mandatory mediation is the answer doesn’t sit well with us.” Susan Grocott of the Family Law Bar Association thinks that ‘education’ is the key to more families engaging with non-court dispute resolution, saying that the more the mediation message is seen, the more it will begin to register.

Bradie Pell, partner and head of Graysons’ family law team says:

“There is no doubt that keeping people with family disputes out of court is the way forward, and mediation certainly helps with that, but it is not for everyone.  Currently, there is a requirement that anyone who wants to apply to court for an order about arrangements for their finances or their children must attend a mediation, information and assessment meeting (MIAM) first. There are exceptions to this and so many couples don’t attend these meetings. Of course, most people would prefer to settle their cases, particularly those relating to children, outside of the court arena, but there are still situations where court is the only option. Many are now frequently doing so without legal help – becoming litigants in person. Of the cases being completed in the first quarter of 2023, 40% were unrepresented legally, compared with 14% in the same period in 2013 – just before legal aid was removed from private law cases.  Unfortunately, this appears to be one of the reasons that the courts are becoming so blocked, as judges have to spend more time helping the litigants deal with the legal process. Perhaps greater focus on available funding would enable people to seek early legal advice to avoid court applications in the first instance. The consultation has now completed and we await the government’s response to find out what its plans are.”

Author: Bradie Pell, partner and head of Graysons’ family team.

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