The Ministry of Justice has carried out a consultation on the earlier resolution of private family law arrangements, with an emphasis on steering parties to private law children and financial remedy disputes toward mediation.
Proposals include:
- Making mediation compulsory before an application can be made to court for most private law children cases and contested financial remedy cases, subject to certain exemptions (e.g. in cases involving domestic abuse);
- Government funding of mediation for all children cases, up to £500 and consideration of the approach to financial remedy cases;
- Stronger accreditation for mediators;
- Greater use of costs orders where parties have failed to make a reasonable attempt at mediation or if they unreasonably pursue an issue. The Ministry of Justice is proposing to increase the use of costs orders in appropriate cases, both in the short term and after the introduction of the requirement to mediate. They suggest that costs orders should also be considered where the court decides that one party has dragged out court proceedings by refusing to accept a reasonable offer from the other party to the case.
Consideration would be given as to whether attending a different form of non-court dispute resolution should provide an exemption to compulsory mediation. It is also proposed that better information be made available to separating parents, for example. through an online resource and that Separated Parents Information Programmes (since replaced by a new Planning Together for Children course) would be compulsory prior to issuing a court application in appropriate cases.
Claire Yorke says: Protracted court proceedings are rarely in the best interests of a child, and many families try to avoid litigation. However, too many parents treat court as a first port of call, rather than a last resort. Parents who engage in mediation have the advantage of being able to reach an agreement that works for them and their child, with reduced cost and delay, rather than having something imposed upon them. Statistics from the government's mediation voucher scheme shows that the majority of parents who accessed the scheme reached whole or partial agreement.
While mediation can benefit many families, there are a number of reasons why compulsory mediation is not the answer it might initially seem. An essential part of the mediation process is its voluntary nature. Parents who choose to engage in mediation have consciously made that choice and are usually genuinely willing to engage. Forcing parents into mediation will remove this vital element. Further, mediation absent legal advice and an understanding of the applicable principles is less likely to succeed. A recent qualitative study by the Nuffield Family Justice Observatory suggested, amongst other things, that accessible models that provide advice and guidance to the families that want it need to be developed as an alternative to, or in addition to mediation. Information about what mediation is and how it works should also be made more widely available to parents so they can know what to expect from the mediation process. Further, compulsory mediation may cause additional delay within a system where children cases are already subject to significant delays, and where many families desperately need a swift resolution.
The proposal that judges could order parents to mediate with financial penalties if they act unreasonably may also cause difficulties. Any sense of the court "punishing" one parent for their stance in the proceedings can sour the parental relationship further, making co-parenting more difficult, which is rarely in the interests of the child. The government's suggestion that the court might have to ascertain the approach that each party took to pre-court mediation (with the parties potentially waiving mediation privilege) risks additional litigation on satellite matters, rather than maintaining focus on the welfare of the child. It also risks encouraging parties to use mediation as a positioning tool, rather than to genuinely attempt to resolve their issues.