Mandatory Mediation

On the 24th March the Ministry of Justice announced their plans to make mediation mandatory in all family cases unless there are allegations or a history of domestic violence or safeguarding issues.

To help families we will see the government’s Family Mediation Voucher Scheme be extended until April 2025 backed by an additional £15 million in funding. Although it is currently unclear how mediation will continue to be funded post April 2025 this is a positive step in helping families to engage in mediation.

The scheme is designed to help children, it is well known that watching parents acrimoniously go through prolonged court proceedings has a negative impact on a child’s mental health and wellbeing. Currently the Family Courts are overwhelmed, underfunded and under staffed which has led to proceedings taking far longer than they should. The MoJ have estimated that the proposals will help 19,000 separating families resolve their issues away from the courtroom. It is hoped that this, in turn, will allow a speedier resolution for those cases which do need court intervention as the Family Court will not be so overwhelmed with cases.

The MOJ says the voucher scheme (which is currently in place and has been extended) has so far benefitted separating couples and their children. We are told an analysis of the first 7,200 users of the scheme shows 69% of participants have reached whole or partial agreements away from court.

Agreements reached by parties are more likely to be abided by than ones enforced on them by a Judge. Reaching an agreement together also strengthens the parent’s relationship and makes it less acrimonious. Using mediation will also save parents the huge legal fees which accompany court proceedings. All of these are great, if it works.

Mediation is currently a voluntary process, it is questionable whether parties will really engage in the process if it is forced upon them. There is also the question whether mandatory mediation could be used as a means of prolonging proceedings if parties have to attend when they have no real desire to listen to the other parent, compromise or actually reach an agreement.

There is currently a requirement to attend a Mediation Information and Assessment meeting with a mediator before being able to make an application to court (with certain exemptions) so that parties can learn about mediation, what it does and if it could be suitable for them. However, this is often used as a “tickbox” exercise that one has to go through in order to make an application to the court. The question is how useful will mandatory mediation be if it becomes a similar tickbox procedure. It is possible it could simply prolong proceedings and add expense.

Mandatory mediation is currently subject to a government consultation which will run for 12 weeks from 24 March, closing on 15 June 2023. It is hoped the consultation period will show the answers to the above questions.

While many welcome this news there are also questions about placing this funding where it will really be useful, for example funding initial advice (which has long been called for by groups such as Resolution). Legal advice provides parties with a realistic expectation of the outcome of their case and this is much needed with so many litigants in person. It would be helpful to engage a solicitor prior to mediation so that you have an understanding of your legal position before entering into mediation.

Also be aware that any agreement reached in mediation is not legally binding, it is always sensible to take your agreement to a solicitor for advice regarding making the agreement binding and any next steps you may need to take. 

Watch this space for news following the 15 June 2023.