Law Articles

When voluntary becomes compulsory – a new approach to Mediation 19/06/2023

Mediation has until now been an entirely voluntary process. Regardless of the fact that it is an ADR (Alternative Dispute Resolution) steppingstone to be able to make a Court application, it has been the case thus far that an “attempt” as is required by the application process, could be as little as one party inviting the other and the other politely (or otherwise) declining this request.

However, in a specific set of low-level Family Law cases and, more poignantly, in cases where there has been a history of domestic abuse, this may be set to change according to the Ministry of Justice.

The intention, we are told, is that trained mediators should now be compulsorily used by separating families to agree child contact and financial arrangements post separation to ease the court’s backlog by resolving issues without the need for either party to make a court application.

This is a nice idea in theory to relieve the pressure on the courts, however, whether this soon to be forced process relieves pressure on the victims remains to be seen.

The presence of domestic abuse in a relationship has always constituted grounds for exemption in respect of mediation where court proceedings are concerned. This makes sense. Why and how are parties, one of whom has been subjected to domestic abuse in their relationship, expected to sit in a room with each other, or even in separate rooms in proximity, to resolve their issues?

This idea brings about many more questions than it resolves. Why, seemingly all of a sudden, has the government moved from seeking to protect victims of domestic abuse by ensuring that they are not forced to meet with or be in any situation where they could run into the perpetrator to a position whereby the only demographic they are seeking to force into mediation are those who have been subjected to abuse?

Even in the situation whereby the mediator utilises what is known as “shuttle mediation” (where they literally shuttle between separate rooms between parties) this process would have to be strictly and sensitively managed. Firstly, by staggering the arrival and departure times to ensure that neither party runs into the other. Also, the victim is likely to feel extremely anxious about being in such proximity to their perpetrator, particularly if they were subjected to financial abuse in their relationship and they are in the building to discuss division of matrimonial assets.

There are many and various excellent mediators out there and whilst they can do what they can to put these safeguarding protections in place, they are still a neutral entity in proceedings who are paid by both parties and therefore cannot in their role show any bias one way or the other.

These proposals will be subject to a government consultation, and this will run for 12 weeks ending on 15 June, so it is due to end very soon.

The government’s position on this is that court action should be a last resort. This is not a revelation. Court action should always be a last resort, regardless of the facts of the case, all resources should be used in the first instance to reach an amicable agreement where possible.

However, it is usually the case that when domestic abuse raises its ugly head, all bets are off. It is not appropriate or fair to use the most vulnerable cross section of separating couples to relieve pressure on the court. And how in practice will this relieve pressure on the court? Will victims simply agree to wholly unreasonable proposals simply to avoid coming face to face with their perpetrator? Yes, this may relieve the backlog and relieve pressure on the courts, but this is not justice for the victims. This notion needs to be reconsidered as it is likely to have serious consequences, affecting not only the victims but likely their children as well.

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.