Mediation or financial penalties

On 23 March 2023, the Ministry of Justice announced plans to make mediation mandatory, aimed at protecting children from the damaging impact of bitter courtroom battles, diverting thousands of family disputes away from the court and in turn, easing court pressures and prioritising the most serious cases.

The MoJ expects to help up to 19,000 separating families each year resolve their issues out of court, and that 36,000 vulnerable families each year will benefit from faster hearings and quicker resolutions as a result.

To enforce this potential new regime, judges could be given a new power to order parents to make a reasonable attempt to mediate with possible financial penalties if they act unreasonably and harm a child’s wellbeing by prolonging court proceedings.

Whilst it is intended the plans would only apply to cases without domestic abuse allegations, urgency, or child protection issues, it raises significant concerns where a party may be pressured and subjected to controlling behaviour. This risk may not be clear in the absence of more obvious domestic abuse, leading to an unfavourable outcome for the vulnerable party. In those cases, parties would benefit from lawyer-led mediation, and whilst the costs may not be as light, it could still resolve the issues without court intervention. Unfortunately, this will not help a vulnerable party who cannot afford legal fees, unless legal aid can be extended for this purpose.

On the flip side, domestic abuse allegations are easily made, and on occasions not even determined by the court in proceedings. This may be exploited by a party intending to avoid mediation. It is very clear that if the new rules are implemented, they must be sufficiently prescriptive and there must be appropriate safeguards to protect vulnerable parties.

Where parties resolve their disputes through mediation, significant litigation costs will be avoided, however, parties attending mediation for the purposes of avoiding financial sanctions and criticism may be less likely to agree in mediation, incurring additional costs and delay.

At present, mediation is voluntary, which is one of the main principles of mediation and which promotes sustainable proposals and subsequent agreements. Further to the Family Procedure Rules 2010, before making an application for certain types of family law orders, the applicant must attend a Mediation Information Assessment Meeting (MIAM) with a mediator to obtain information about the process (with some exceptions). Despite it being voluntary, and even without the proposed reforms, judges can encourage parties to mediate and are able to make orders for costs against a party who fails to comply with a direction to resolve issues through alternative dispute resolution (ADR). This occurred in JB v DB [2020] IWHC 2301 (Fam). Mostyn J ordered 'The parties are directed in the meantime to use their best endeavours to resolve the issues, if necessary, through mediation or another form of non-court dispute resolution. The court will require at the hearing a full explanation of what efforts have been made to resolve the issues and will want to know why, without breaching privilege, the case has not been capable of settlement.' At the subsequent hearing, the husband argued it was essentially impossible to resolve the issue by discussion and mediation. Mostyn J disagreed, and ordered a sanction in costs, assessed in the sum of £15,000.

If the proposed reforms are not pursued, it may be the court takes a greater role in reviewing the question of mediation or other ADR at the first hearing in family cases, where the judge will better gauge whether mediation is suitable, knowing the circumstances of the case. Perhaps further information is provided by the MIAMs mediator where mediation does not take place and make MIAMs compulsory for both parties, rather than just the applicant. From experience, where two parties attend a MIAMs, a higher proportion of disputes are dealt with through mediation, with a higher success rate.

The proposals will be subject to a government consultation which should conclude by 15 June 2023.

Gavin Scott is a family law partner at national law firm Freeths