Will family mediation become mandatory?

Mediation is a form of dispute resolution, alternative to court proceedings (such alternatives to court are known as ‘alternative dispute resolution’ or ADR). Mediation consists of the parties meeting with a trained mediator, who will help them try to resolve the matter by agreement.

Since 2014 anyone wishing to make an application in, or to initiate, family proceedings, has had to attend a Mediation Information and Assessment Meeting (‘MIAM’) before making the application, unless an exemption applies (for example where there has been domestic abuse). The purpose of the MIAM is, as its name suggests, to provide information about how mediation works, and to assess whether the case is suitable for mediation.

But this requirement does not mean that it is compulsory to go through mediation. Even where the case is assessed as being suitable for mediation, the parties are quite free to decide that they do not wish to go through it. Mediation can only take place if both parties agree.

There has for some time been a discussion about the possibility of mediation being compulsory in family cases, but until now the majority view has probably been that compulsory mediation is not a good idea. After all, the very idea of mediation is to encourage the settling of cases by agreement, and many have thought that this would be unlikely if one or both of the parties were forced to go through mediation against their wishes.

But all of that may be about to change.

Civil Justice Council report

On Monday the Civil Justice Council, which advices on civil (non-family) cases, published a report on the legality and desirability of compulsory ADR. The report concluded that mandatory ADR is lawful and should be encouraged.

In response to the report, the Master of the Rolls, Sir Geoffrey Vos, chair of the Civil Justice Council and Head of Civil Justice, said: “As I have said before, ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.”

This development is highly likely to re-ignite the debate over compulsory mediation in family cases. But will family mediation become compulsory?

Factors to consider

There are a number of factors to consider here, including the following.

Firstly, the likelihood of mediation being successful. Obviously, there is no point in compelling parties to embark upon mediation that is doomed to failure. Some sort of checking for suitability of cases will be required, as in the present MIAM system, referred to above.

Secondly, and linked to that first point, there is the question of expense. Mediation is not free, and the parties must have the means to pay (or be exempt from payment). And obviously if the mediation is not successful then that expense will all have been wasted.

Thirdly, as is already recognised, mediation is not appropriate in cases where there are allegations of domestic abuse (although it may be necessary to test those allegations, to ensure that they are not just made up to avoid compulsory mediation).

Fourthly, legal advice must be available (and affordable) to both parties – a mediator cannot give legal advice to either of the parties, even where they are a lawyer.

Lastly, there is the point we referred to above: how do you force someone to engage in mediation against their will? Of course, you can’t. The answer may be to ‘encourage’ them to do so by imposing costs penalties against them if they unreasonably refuse to engage, but such penalties would have to be used very carefully.

Clearly, there are many things to consider, but with the continued pressure on the courts, and with the government anxious to keep the cost of the justice system down, compulsory family mediation may become a reality in the near future.