Should family mediation be compulsory?

Obviously, it is always better if family issues are resolved by agreement, and one way of achieving this is via mediation, whereby a trained mediator will endeavour to help the parties to reach agreement.

Mediation is an important tool in reaching out of court solutions, but until now it has been entirely voluntary. True, before making an application to court all applicants must first attend a Mediation Information and Assessment Meeting (‘MIAM’), unless they are exempt, but that is merely a meeting with a mediator to explain how mediation works, and to assess whether the case is suitable for mediation. Whether the parties then go to mediation is up to them.

So, while the answer to the question “is mediation compulsory in family law?” is currently no, family mediation may soon be made compulsory.

Government Consultation About Compulsory Mediation

On the 23^rd of March the Ministry of Justice, Cafcass and the Lord Chancellor announced proposals to introduce mandatory mediation for separating couples.

The proposals will mean that separating couples will have to attempt to agree their arrangements for children and finances through a mediator, with court action being a last resort.

Parties who do not make a “reasonable attempt to mediate” could face financial penalties in any subsequent court proceedings (presumably it would be for the judge to decide whether a reasonable attempt has been made). The penalties would likely take the form of orders requiring the party who failed to make a reasonable effort to mediate to contribute towards the legal costs of the other party.

The government says that “It is expected the move could help up to 19,000 separating families resolve their issues away from the courtroom, while also reducing backlogs, easing pressures on the family courts and ensuring the justice system can focus on the families it most needs to protect.”

The proposals are 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 lived experience of the family courts or mediation.”

The consultation runs until the 15^th of June, and can be found here.

Meanwhile, the government’s Family Mediation Voucher Scheme will be extended until April 2025, backed by an additional £15 million in funding. The scheme provides separating couples with vouchers worth up to £500 to help them solve disputes through mediation, and has so far supported over 15,300 families.

Mediation isn’t always appropriate

The government acknowledges that mediation is not appropriate in all family cases. It is therefore proposing that there be exemptions to the requirement for compulsory mediation.

The exact exemptions are yet to be decided, but the consultation mentions cases where there are concerns over domestic abuse, cases where there are child protection issues, and urgent cases.

But will there also be some cases that don’t fall within those exemptions but are still unsuitable for mediation?

Take, for example, a child arrangements case in which one parent alleges that the other has alienated the children against them. In such a case it could be argued that mediation would literally be a waste of time, further delaying resolution of the issues. Surely, it would be far better for the court to deal with the case as soon as possible?

On the other hand, it can be surprising what cases are resolved by agreement, as any experienced family lawyer will attest. Sometimes, the parties are so entrenched with their opposing views that it seems impossible, and yet it does happen. Shouldn’t mediation therefore be ‘given a chance’ in all non-exempt cases?

But what if neither party wants to go to mediation? Should they still be forced to do so? And if they then both fail to make a reasonable attempt to mediate, how are they to be penalised?

And then there is the argument, raised by Resolution among others, that mediation works best when it is done voluntarily, and that forcing parents to choose a route that may not be suitable for them is not an appropriate course of action.

Clearly, the introduction of compulsory mediation is a controversial idea, and there is likely to be considerable argument both for and against it. If you feel that you have a useful contribution to make towards the discussion you can respond to the consultation here.

How We Can Help

Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.