Where now for mediation?

On 26 January – the last day of Family Mediation Week – the government said it had shelved plans to make mediation compulsory for separating parents in England and Wales. 

Voluntary participation has always been at the heart of family mediation. To suggest it should be compulsory demonstrated a lack of awareness of how the process works and failed to recognise that compulsion was likely to achieve the opposite effect to what was intended. The Ministry of Justice should have known, when it announced its proposals in March 2023 to make mediation compulsory, that this would lead inevitably to considerable criticism and resistance.  

To acknowledge its error was welcome but to make the announcement at the same time as family mediators were doing all they possibly could to promote family mediation, was, to say the least, ill-timed.

What message does the announcement send to potential mediation clients? Will that announcement be received positively? Or will it be seen by many that the government does not view mediation as worthwhile?

Family Mediation Week exists to engender greater awareness of the benefits of family mediation, and that should be accompanied by wholehearted government support.

The government suggested last March that ‘thousands of children could be protected from witnessing their parents thrash out family disputes through the courts, following plans to mandate mediation for separating couples’. The scheme to make mediation compulsory was described as ‘a major shake-up to the family justice system’. Mediation would become mandatory ‘in all suitable low-level family court cases’.

It added that ‘separating couples have to attempt to agree child custody and financial arrangements through a qualified mediator with court action being a last resort’.

It was also suggested that judges would have new punitive powers 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’.

The proposals intended to deal with an ever-increasing workload in the family courts. These courts were becoming overwhelmed by the number of applications, especially in relation to children, a problem exacerbated by the increasing number of parties without legal representation.

Before turning to the government’s revised proposals, it is worth looking at the problem it is trying to grapple with and to do so in its wider context.

The Marriage Foundation has reported that the UK has one of the highest rates of family breakdown in Europe, with an estimated annual cost to the economy of £50bn. At the same time, society is radically changing, but the law has been slow to adjust to these fundamental changes.

In 2020 the number of couples deciding to marry or enter into a civil partnership was in decline and at its lowest since 1838. In 2021, divorces rose by 9.6% compared with 2020.

Further Marriage Foundation research found that unmarried parents comprise only one in five of all cohabiting parents but account for half of all family breakdown cases. More than 50% of children born in 2021 had parents who were not married.

The absence of protection for those who live together but do not marry and then separate is an area of the law long overdue for reform.

The government is right to be concerned about the increasing numbers of private law applications made by parents concerning the arrangements for children and the increasing delays in applications being heard. In June 2023 the average time for determining applications which could not be agreed increased to 47 weeks.

Following the removal of legal aid in April 2013 the number of parents who are not represented has risen considerably. Between July and September 2023 neither party was represented in 40% of cases, an increase of 26% on the previous 10 years.

The government is proposing to launch a new pilot on legal advice which will ‘seek to demonstrate the benefits of high-quality legal advice for families looking to resolve their issues through the courts and, where a court is deemed necessary, better prepare them for the court process’. Why? Family lawyers already know the answer.

Undoubtedly, parents need quality legal advice at the outset. If they get it they are much more likely to come to an agreement and avoid making applications to court, especially if they also have access to other means of resolution, including mediation, supported by legal advice.

For this to work effectively, the government needs to put in place financial support for those who cannot afford legal advice.

Too many applications made about children do not raise legal issues at all. Those applications are the result of relationship breakdown and there already are better  ways of helping overcome those.

Overall, the government plans are encouraging. But this U-turn demonstrates the need for a coordinated approach. This must involve the government, in the form of the Treasury and the MoJ, the judiciary, family lawyers, mediators and everyone involved in the family justice system.

Lawyers also need more training in how relationships work, why they break down and how best to help clients when they do.

Family lawyers need to show more awareness and encourage far greater use of all dispute resolution options, including mediation, collaboration, the ‘one lawyer, two clients’ model such as ‘Resolution Together’, mediation (especially child-inclusive mediation), as well as family arbitration and quasi-judicial out-of-court resolution.

These recommendations were made in the 2020 What about me? report by the Family Solutions Group. Commenting upon compliance with and enforcement of The Law Society’s Family Law Protocol, Resolution’s Code of Practice, and lack of inter-disciplinary practice, one of its damming conclusions was that family solicitors are part of ‘a profession with unenforced regulations who are not held accountable for the way in which they conduct their practice’.

Everyone involved in family justice has a lot to learn.

 

Graham Coy is a partner in the family team at Wilsons Solicitors, London