Law Articles

Government decides mediation is not compulsory for separating couples 05/02/2024

In England, the concept of compulsory mediation in family law has been a subject of significant debate and legislative consideration. The idea behind compulsory mediation is to encourage separating couples to resolve their disputes outside of court, thereby reducing the burden on the judicial system and potentially leading to more amicable resolutions. However, the implementation of such a policy has faced challenges and opposition.

As of early 2024, the UK government had proposed making mediation mandatory for "low level" family disputes, excluding cases involving allegations of abuse or a history of domestic violence. The intention was to keep family disputes away from court, with the belief that up to 19,000 separating families could resolve their issues outside of court. This proposal was part of a broader effort to address the significant delays and backlogs in the family court system, which have been exacerbated by an increase in private law cases.

Despite these intentions, the government faced criticism from various stakeholders, including lawyers, domestic abuse charities, and family dispute experts. Critics argued that compulsory mediation could place vulnerable people at further risk and potentially empower abusers. Concerns were also raised about the effectiveness of mediation when participation is not voluntary, as the success of mediation often depends on the willingness and readiness of the parties to engage in the process.

In response to these concerns, the government decided to shelve the plans for forced mediation. Instead, it announced measures to better protect children from lengthy legal disputes, including offering early legal advice to separating families, improving training for mediators, and extending a pilot that offers more support to those affected by abuse. This decision reflects a recognition of the complexities involved in making mediation compulsory and the need to ensure that any reforms to the family justice system do not inadvertently harm vulnerable individuals.

While the idea of compulsory mediation has not been fully implemented, the government continues to support the use of mediation as a voluntary option. Mediation remains an increasingly popular choice for many separating couples, offering a less adversarial and often more cost-effective alternative to court proceedings. The government has also extended the Family Mediation Voucher Scheme until April 2025, providing financial incentives for couples to consider mediation.

While the UK government has explored the possibility of making mediation compulsory in family law cases, it has ultimately decided against this approach due to concerns about the potential risks to vulnerable individuals and the importance of voluntary participation in the mediation process. The focus remains on encouraging the use of mediation as a voluntary, alternative dispute resolution method, supported by initiatives like the Family Mediation Voucher Scheme, and obtaining legal advice early in the process with a view to avoiding court proceedings.

Pros and cons of mediation

Mediation in family disputes offers several benefits, such as being cheaper and quicker than court proceedings. It also gives the parties more control over the decisions they make in relation to childcare arrangements and division of assets following separation. It encourages amicable communication, reducing potential conflict and making the separation process less stressful. It can also help relationships from deteriorating further, which is particularly helpful if there are children involved. It provides a less adversarial and stressful way of dealing with sensitive matters, allowing the parties to come together to find a solution that works for both. It also provides confidentiality, as nothing discussed at mediation is admissible as evidence in legal proceedings should court proceedings be issued later. It is a voluntary process where both parties have discussions with the assistance of a neutral third party. The success of mediation often depends on the willingness and readiness of the parties to engage in the process.

When considering mediation, it is important to be aware of possible challenges too, such as the mediator not providing judgments or imposing decisions which can make negotiations difficult if the parties have entrenched positions, or if there is a significant power imbalance. The outcomes of mediation are not legally binding which means that, even if an agreement is reached, it may not be enforceable if one party decides not to adhere to it, which is why it is important to instruct a family solicitor to incorporate the agreed terms into a legally binding agreement if possible. Mediation relies on both parties being honest and transparent so, if one party withholds information or is not truthful, it can undermine the process. The mediator's role is to facilitate discussion and help parties reach a resolution, but they cannot make decisions for the parties or tell them what the right outcome is, so it is always best to obtain legal advice before, during, or after mediation to ensure the agreement reached at mediation is fair in law. A further point to note is that some issues could be agreed at mediation, but some could remain unresolved, thereby necessitating involvement of solicitors or court proceedings.

It's important to note that these disadvantages do not imply that mediation is inherently flawed. With the right mediator and a willingness from all parties to engage in the process, many of these concerns can be managed and addressed.

Mediation may not be appropriate in all situations, such as cases involving allegations of domestic abuse or a history of domestic abuse.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.