Will couples who refuse to mediate be fined?

Will couples who refuse to mediate be fined?

When couples separate they will have issues to sort out between themselves, in particular over arrangements for any dependent children, and finances. Those issues can, of course, be resolved either in or out of court.

Resolving issues out of court usually means the parties coming to an agreement (the exception to this is where the case goes to arbitration, and the arbitrator decides the issue for them). Often, agreement can be reached without any outside assistance, save from lawyers. Sometimes, however, the couple need help to reach agreement, and this usually means going to mediation.

What is mediation?

Mediation is a process whereby a trained mediator helps the couple resolve their issues by agreement. The mediator will not give legal advice to the parties, who may take their own advice before entering into any mediated agreement.

At present, mediation is purely voluntary, although everyone wishing to make an application to a family court must first attend a Mediation Information & Assessment Meeting, or ‘MIAM’.

As the name suggests, a MIAM is used to give the parties information about mediation, and to assess whether the case is suitable for mediation. However, even if the case is considered suitable, there is no compulsion to go to mediation – mediation will only take place if both parties agree.

The cost of court proceedings

That, as stated, is the present position. However, it has been suggested that it may be about to change.

And the reason for the suggested change is the cost to the taxpayer of the court system. Court users pay fees for the service, but those fees usually do not even begin to cover the true cost involved, including the salaries of judges and all others employed by the courts, the upkeep of court buildings, and so on.

And in these days of fiscal restraint the government is of course anxious to make savings wherever it can, and that includes the courts service.

It has thus long been the policy of government to encourage the use of mediation in family disputes (hence the introduction of compulsory MIAMs in 2014), and the suggestion is that the government is about to take this one step further, by fining couples who go to court after refusing to mediate without good cause (for example where there has been domestic abuse).

The suggestion stems from comments made by the Lord Chancellor Dominic Raab back in November. As we reported here, Mr Raab told the House of Commons Justice Committee that he wants to do more to reduce the number of family disputes going to court. He also revealed that talks have begun with the senior judiciary about offering greater incentives to couples to settle disputes through alternative means such as mediation, although he did not indicate what these incentives might be.

Fines for mediation refuses?

But could the threat of fining those who refuse to mediate be one of these incentives?

It seems unlikely. Fining people in the middle of an already highly distressing family dispute is hardly going to help matters. And then there is the logistical cost of imposing and enforcing the fines, which would surely have to be borne by the state.

More likely is a system whereby if one party refuses to go to mediation without good reason, thereby forcing the other party to incur the expense of contested court proceedings, the refusing party might be ordered to pay all or part of the other party’s legal costs for the court proceedings. The knowledge that this is a possibility will surely act as an incentive to go to mediation.

But we also need to consider whether such a policy would actually be effective.

Family mediation is generally very successful. A survey carried out by the Family Mediation Council in 2019 found that those who participated in mediation succeeded in reaching complete or partial agreement in over 70% of cases.

But that success rate is of course partially due to the fact that those people participated voluntarily. Would mediation involving the unwilling have the same success rate?