Law Society and Resolution give guarded responses to government’s mandatory mediation proposals

Back in April we reported that the government was consulting on proposals to introduce mandatory mediation for separating couples.

And now two very important organisations have published their responses to the consultation: the Law Society, the professional association that represents solicitors in England and Wales, and Resolution, the association of family lawyers.

Before we look at the responses, let us briefly remind ourselves of exactly what the government is proposing.

The government’s proposals

The government is proposing that separating couples should make a “reasonable attempt to mediate”, before they go to court.

If a party does not make a reasonable attempt to mediate, without a reasonable excuse (for example where there has been domestic abuse), then the court will penalise them, possibly by ordering them to contribute towards the other party’s costs.

The proposals were subject to a government consultation, seeking views on the proposals from “organisations representing separating families, family justice professionals, mediation service providers, other dispute resolution service providers and individuals who have live experience of the family courts or mediation.”

The consultation period ended on the 15^th June. The government has not yet published the outcome of the consultation, but the Law Society and Resolution have published their responses.

The responses to the proposals

In their response the Law Society say that: “Divorcing couples should not be subject to mandatory mediation, as putting barriers in place to attending court is likely to deny access to justice”.

The Society therefore called for mediation not to be mandatory in divorce cases, saying that no form of dispute resolution should be mandatory – attendance must be voluntary for it to be effective, and that complex cases in particular may not be suitable for mediation.

It also called for legal aid to be made available for early advice, which could mean that there was more chance of early settlement.

Resolution made similar points in its response.

It said that whilst mediation helps and will continue to help many families who choose to use it, it is not right for everyone, and should not be forced upon anyone.

Resolution also pointed out that there are other forms of out of court dispute resolution (such as Collaborative Family Law), which need to be considered and funded.

And Resolution made the same point as the Law Society about access to early legal advice, a representative saying: “What is … sadly lacking [from the government’s proposals] is that there is no funding for any initial legal advice. That is a message that we have been making … now for around eight years and we feel very strongly that without that initial funding for legal advice, unfortunately these proposals are going to fail.”

Should we take these responses seriously?

There will, of course, be many who will dismiss these responses as merely attempting to protect vested interests. After all, both the Law Society and Resolution represent lawyers and obviously lawyers will not want to lose business by having more cases settled out of court.

But the responses should not be dismissed so easily. For a start, many of the members of both organisations are mediators as well as lawyers, who may well gain as much business as they may lose as a result of mediation becoming compulsory.

And anyway most family lawyers have long been recommending mediation to clients in appropriate cases.

And further to that, all family lawyers will endeavour to resolve cases by agreement wherever possible, even when mediation is not attempted. The vast majority of family cases are resolved by agreement without going to court, largely through the efforts of family lawyers.

And family lawyers know what they are talking about. They spend their careers in the ‘front line’ of family cases. No one knows better than they do about the best way to find out of court family law solutions.

Will these responses make any difference?

Even if the responses are taken seriously the big question, of course, is: will they make any difference to the government’s plans?

The government is clearly enthusiastic about the proposals, and no wonder if it believes that they will save money.

And the government’s enthusiasm for mediation is not limited to its use in the family justice system. It has just announced that mediation is to become part of the court process for small civil claims valued up to £10,000.

Both the Law Society and Resolution make good points. But whether their points will be enough to deflect the government from its chosen path is another matter.

How can we help?

For a more in-depth understanding of how mediation works and what mediation actually is, please visit our How does family mediation work page.

Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration. Please contact us for further information.