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Compulsory mediation ruled out for separating couples

By Monidipa Fouzder >>

(26 January 2024)

Plans to force separating couples into mediation to keep family disputes away from court have been shelved, the government announced this morning.

After consulting on mandatory mediation last year, the Ministry of Justice said that concerns had been raised about the adequacy of proposed safeguards to protect victims of domestic abuse. The ministry will instead work with the Family Mediation Council to improve training for mediators on abuse and identifying victims.

At the same time, the ministry stressed that its mediation voucher scheme has so far helped over 24,600 families resolve their issues away from court.

A legal advice pilot was also announced to help families agree child arrangements quickly and address barriers to early resolution. 

A more investigative, problem-solving approach in family proceedings involving domestic abuse or substance misuse allegations piloted in North Wales and Dorset will be expanded to family courts in Birmingham and south-east Wales ahead of a national rollout. The ministry said judges will be able to review more documents before a case gets to court and give children more opportunity to explain their feelings.

Lord chancellor Alex Chalk said: ‘There is no one-size-fits-all approach for separating families, which is why we’re ensuring people have access to early legal advice and mediation to resolve disputes as early as possible. These reforms will help spare thousands of children the long-term harm of lengthy, combative courtroom conflict.’

Meanwhile, the Gazette has learned that judges will get tougher in their efforts to encourage mediation. An updated practice direction comes into force in April. Sarah Manning, a partner at Hall Brown Family Law, said that judges who believe someone has not taken mediation seriously enough will be able to ‘pause proceedings and compel them to attend assessment meetings’. She also welcomed the closure of a pandemic-era ‘loophole’ allowing people to avoid sessions if they live more than 15 miles apart. This will stop people trying to game the system.

Commeting on today’s announcement, Law Society vice president Richard Atkinson said: ‘The government has listened to our concerns and implemented policies which will help families seeking justice. Mandatory attendance for mediation could negatively affect the outcome of a dispute. Making mediation voluntary means that domestic abuse victims can be referred to services that can guide them through the right dispute resolution process for them.’

Atkinson welcomed the early legal advice pilot.

He said: ‘Getting a divorce can be a stressful and highly emotional time for separating couples and for those with children. It’s important that a case is heard in the right place, so they can quickly and sensitively sort out their living arrangements. We are pleased the government will be using early legal advice to ensure families get the justice that’s right for them, whether it’s mediation, litigation or non-court dispute resolution. Having the conversation early could mean a dispute is settled sooner.’

Beverley Sayers, a member of the Family Mediation Council board, said: ‘We welcome government action that further encourages separating families to resolve issues earlier through mediation, and make parenting and financial arrangements, without all the complications and expense involved in going to court. We also welcome the decision by ministers to emphasise the essential voluntary nature of mediation in line with the views of hundreds of expert, experienced family mediators who helped shape the FMC’s response to the government’s consultation on the plans.’

Sir Andrew McFarlane, president of the family division, said: ‘If implemented, the range of initiatives published today are likely to be of genuine benefit in assisting many separating parents to resolve disputes over the care of their children promptly and without going to the family court. The primary responsibility for promoting the welfare of a child is borne by the child’s parents and not by magistrates or judges; the court should be the last place of resort, rather than the first port of call.’

(Courtesy: The Law Society Gazette)