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Compulsory mediation in the family courts?

By Toby Netting

Published In: Family - Separation, Family - Divorce

“Splitting parents face fine for refusing mediation”was the BBC headline for the consultation process started by the Justice Secretary Dominic Raab on the 23rdMarch 2023. It will be considering if the Family Court should be given the power to compel separated parents or divorcing parties to mediate and not litigate.

There’s already a requirement for parties to be assessed if mediation is suitable or not before they start any Children Act or financial remedy proceedings, but they can progress to issue a Court application if they don’t feel mediation is for them. This proposal takes matters a step further by enabling Judges to order separating couples make a “reasonable attempt” to agree matters in mediation, and face fines “if they act unreasonably and harm a child’s wellbeing by prolonging court proceedings”.

The idea is to relieve pressure from the congested Family Court, but will the proposals have the desired effect?

In Children Act proceedings, if parties are to be ordered by a Judge to mediate, then their case is already before the Court. This means that not only has a mediation assessment already taken place, but the matter has been lodged, issued and either a “gatekeeping” order* made or a directions hearing** taken place.

For financial cases, at what stage would the mediation be compulsory?

Will it be after all the relevant information has been gathered, considered, and checked and any valuation or expert third party evidence has been received, such as actuarial reports? Unless this has been carried out voluntarily, this would be well through the financial remedy Court process. It’s hard to see how these are saving the Court time and reducing their workload.

Also, it’s a fundamental pillar upon which the mediation process is built that this is a voluntary process and, although ideal for a large number of these types of cases, it’s not for everyone. One of the key elements of the Mediation Information and Assessment Meeting (MIAM) is to screen for domestic violence. How do we balance the need to reduce the Family Court burden against ensuring that somebody who is subject to controlling and coercive behaviour isn’t at a significant disadvantage through being forced to mediate?

There is a lot to clarify and consider.

What would happen if the mediation service are clear that they don’t believe that mediation is appropriate, but a Judge has ordered it is to take place and there’s then the threat of a fine hanging over the parent’s head? What’s the definition of a “reasonable attempt” to agree matters, and how does this fit with two parents with different but equally valid viewpoints being unable to reach an agreement?

Although headline grabbing, it shows a lack of understanding of mediation and the complexities of this area of law. It also fails to recognise the existing deep-seated desire of most family lawyers to avoid Court through constructive negotiation, collaborative law, or mediation.      

*Gatekeeping order:  where the court have considered the details of the application in the parties absence and allocated it to the appropriate level Judge

**Directions hearing:  (where all parties have attended Court to discuss the possible options with a Judge or bench of Magistrates).

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Toby has worked in the legal sector for 27 years, he’s a Director at Switalskis.  Toby is a specialist in Collaborative and Family law.

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