It has now been more than 18 months since the Family Procedure (Amendment No. 2) Rules 2023 came into force, placing greater emphasis on non-court dispute resolution (NCDR). Since then, we have started to see tangible change – particularly in how mediation is being used in private family law proceedings.
Notably, a growing number of families are coming to us not just through word of mouth or self-referral, but at the suggestion – or direction – of a judge.
This is how it typically works: a family initiates court proceedings, but when the judge reviews the case, they determine that alternative dispute resolution (ADR) may be more appropriate at this stage. Rather than progressing immediately to a hearing, the judge refers the parties to explore whether the issues can be resolved out of court via methods such as mediation – delivered by providers such as NFM (National Family Mediation).
As a result, we are seeing a steady rise in the number of families being directed to mediation. While national data is still emerging, early indications across the sector suggest that referrals to mediation and other forms of NCDR have risen significantly since the rule change.
And while it would be remiss to suggest we are dealing with hundreds of new child-inclusive mediation (CIM) cases – which gives children the opportunity to attend and participate in the decision-making process – there has undeniably been a marked increase through these referrals.
This shift is welcome. Not because court-mandated referrals should be the foundation of mediation – they should not – but because it signals a broader recognition that many family disputes are better handled outside the courtroom.
In our experience, many of these cases are not about legal impasses, but emotional ones. Miscommunication, heightened tensions and unresolved feelings often lead to relatively minor issues becoming seemingly intractable. Mediation offers a structured, neutral space where those issues can be addressed constructively – without the cost, stress, or delays associated with court.
Importantly, CIM allows children to be part of that conversation – when appropriate – in a way that is safe, empowering and entirely confidential. In practice, this might mean giving a child the opportunity to express how current arrangements are really affecting them at school, at home or emotionally, away from the pressure of parental conflict. That insight can help parents refocus on arrangements that genuinely support their child’s wellbeing.
However, this growing interest in CIM has revealed an urgent challenge: a widespread lack of understanding about what mediation actually is – and, crucially, what it is not.
Judges and court professionals are, understandably, familiar with the work of Cafcass – the statutory body that advises courts on children’s welfare. Like NFM and other mediation providers, Cafcass ensures children’s voices are heard. But there are critical differences in our roles.
Cafcass officers report directly to the court. They conduct assessments, make recommendations and submit formal reports that can influence judicial decisions. Mediation is fundamentally different. It is confidential, largely voluntary, and entirely independent of the court process. Mediators do not provide recommendations, file reports or feed back on outcomes.
And yet, at NFM we are increasingly being asked to provide summaries or reports following CIM sessions. This misrepresents our role and risks undermining the trust that underpins effective mediation.
We understand where this confusion stems from. Cafcass is under enormous pressure, like so many other services within the family justice system. As courts look for alternative ways to support families, they are turning to CIM to help fill the gap. We welcome this. But for CIM to be successful, everyone involved – judges, legal professionals and families – must understand the scope and limitations of what mediation can offer.
To help address this, NFM is in active dialogue with the family courts about delivering free training sessions for judges and court staff, and we are looking to speak to more court clerks about how this can be rolled out more widely. Establishing clarity at this level is critical to ensuring families are referred appropriately.
In addition, funding is an issue. At present, CIM is outside the scope of legal aid and not covered by the government’s £500 mediation voucher scheme. This leaves providers absorbing additional costs and inevitably restricts access for many families. If courts are to continue directing parties towards CIM, urgent consideration must be given to sustainable funding mechanisms to ensure the service remains both viable for providers and accessible to those who need it most.
While the rise in CIM referrals is promising, for this progress to continue, we need to ensure that mediation is properly understood. It is not a substitute for Cafcass. It is a complementary pathway – one that empowers families to take control of their futures, reduces court congestion and protects children from the emotional strain of litigation.
When used well, and when clearly understood, mediation – particularly CIM – has the potential to transform the way we resolve family conflict. But that potential will only be realised if we protect its purpose, maintain its confidentiality and ensure consistent messaging across the entire justice system.
Sarah Hawkins is CEO of National Family Mediation, Exeter
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