No forced mediation – so what now?

The government recently confirmed that the forced mediation plan for separating couples would not be pursued. This option was explored because, despite various attempts to reduce court waiting times and streamline the process, the court system remains overburdened – causing harmful delay to families nationwide. Mediation is a credible ‘out of court’ dispute resolution method and was seen by some as the key to removing the backlog.

Compulsory mediation was not, ultimately, the silver bullet. As with many issues, one size does not fit all. There was significant concern that forcing some to mediate where, for instance, domestic abuse was present may not be appropriate. Not everyone can participate in a process where they are required to advocate for themselves or analyse financial information and negotiate. For some, domestic abuse aside, this may be genuinely impossible and terrifying. There was a significant risk to the compulsory element, which the government ultimately felt was too great to take.

Where does this leave the issue of the still overburdened court system and what strategies could the government adopt instead?

In its attempt to promote mediation, the government introduced a mediation voucher scheme during the pandemic to ease demand on the court system. A non-means-tested contribution of £500 per family towards the cost of mediation was provided to those eligible. The voucher scheme has reportedly benefited almost 25,000 separating families. To further encourage and promote mediation, this scheme could be rolled out for a longer period. It could be means-tested to preserve the ‘pot’ for those that really cannot afford to pay for any external assistance.

Hand in hand with the above, a rise in court applications must be linked to the withdrawal of legal aid for private family matters in 2012. Those who are in dispute and cannot afford assistance will turn to the court, as that is the only option available to them. Not only has this increased court applications by the unrepresented, but these cases also take longer to resolve as the parties have no legal guidance or input. Steps need to be taken to improve this significant access to justice issue.

Information is key. The earlier in the process information can be provided to families about all the options available, the better their chances of making a truly informed choice rather than assuming a court application is the only step. The government could consider educating the wider public on these options, and/or provide GPs/schools and similar bodies who regularly interact with families with basic material, before a court application is even contemplated.

The Fair Shares project funded by the Nuffield Foundation has established that 100,000 couples divorce each year in England and Wales. Despite the financial arrangements they make having short- and long-term financial consequences for them and their children, only a third use the legal system to formalise their agreement so that it is legally binding. While these couples are not adding to the court burden, this research demonstrates that many simply cannot afford advice and so fall through the cracks.

It has been proposed that loopholes for avoiding attendance at a mediation information and assessment meeting (MIAM), since 2014 a necessary step before a court application can be made, will be closed. This is a welcome practical step; the introduction of MIAMs has been positive, useful and goes some way to providing necessary and vital information on options. Inevitably, some try to avoid them altogether by using one of the exemptions. If the exemptions are reduced and a more rigorous assessment is applied, more will naturally have to attend a MIAM.  

The government could also consider working with the Family Mediation Council to standardise the information provided by accredited mediators during MIAM sessions, and to produce material to be handed out illustrating the pros and cons of all the available options as well as the cost benefit of each. In most cases following a MIAM, mediators should contact the other party and invite them to engage. It is not known if all mediators regularly do this – if not, opportunities to engage the other party could be being missed.

There are many interested parties keen to see an improvement here. The resounding message appears to be that the sooner parties have access to good quality advice from a solicitor or assistance from a mediator, the better.

Grace Parker-White is a partner at Stevens & Bolton, Guildford