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Should Mediation Be Mandatory?

on Thursday, 13 July 2023.

Those involved in private family law disputes may now be obliged to mediate their dispute under new Ministry of Justice (MoJ) proposals. Those not doing so could face fines for failing to reasonably attempt to settle this way.

There were almost 29,000 new divorce applications between July and September 2022. The MoJ's proposals are in response to the increasing pressure this puts on family courts and the significant delays in completing cases. All of this is having a detrimental impact on families seeking resolution. It is hoped that by suggesting mandating mediation, along with other measures such as the use of digital technology and increasing the number of judges, it will help ease the strain on the system.

Family Mediation Voucher Scheme

The MoJ has already been encouraging the use of mediation through the Family Mediation Voucher Scheme (implemented in March 2021). This provides eligible parties with up to £500 to allow them to settle their children, finance or property dispute outside of court with the help of a trained independent mediator. Mediation can allow parties to avoid court proceedings and can therefore reduce costs and stress. However, mediation does not guarantee an out-of-court solution and if an agreement cannot be reached then the court process may still be required. Nearly 13,500 families have taken advantage of this scheme and funding was increased in 2021 to provide for additional support.

What Are the Potential Issues With the Proposal?

The proposal for mandatory mediation seeks to allow even more cases to settle before court hearings are required. However, the Law Society of England and Wales have stated that in order for mediation to be effective, it must be voluntary. Mediation requires parties to engage with the process and be willing to attempt to find a mutually agreeable settlement.

If parties approach the process involuntarily they may be resistant and so court hearings may be inevitable. Costs orders could however still be imposed on those who do not make a reasonable attempt to mediate. The Law Society have outlined that most couples will try to avoid costly litigation, so it is the particularly complex cases which require court hearings and therefore these will be the most affected by the proposals.

There are also risks for relationships where coercive control and other forms of domestic abuse exists. A victim/survivor may feel forced into mediation despite the imbalance of power they have with their ex-partner and may retraumatised by the process. Unless a mediator knows of the abuse, which some victims may not disclose and can be hard to identify, they may not take the potential manipulation into account when attempting to reach a solution amongst the parties. This allows the abuse to continue.

The charity Women's Aid have stated that it is crucial that the MoJ provide clarity on how they plan to ensure all victims/survivors will be kept safe if these proposals are brought in. However, the Justice Secretary believes the change will reduce court delays and allow the most urgent cases involving domestic abuse to be heard by a court as quickly as possible.

With the consultation now closed, the Government will consider the responses and decide how to proceed.

Our expert family solicitors are experienced in advising clients on divorce and separation. We also have a trained collaborative lawyer and mediator within the team who can, if the case is suitable, assist in supporting parties in other methods of dispute resolution.

If you need any advice or support on dealing with the breakdown of your relationship, please contact our New Enquiries team on 020 7405 1234, or complete the form below.

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