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Insights // 05 April 2023

Could Separating Individuals Face a Penalty for Refusing to Try Mediation?

Senior solicitor Catherine Currie, in our Family Law team, looks at if and when couples separating or looking to divorce may be required by law to try mediation.

What is family mediation?

It is a process whereby an independent, professionally trained mediator assists separated individuals to resolve arrangements for their children and financial matters. The mediator cannot provide legal advice but helps to find practical ways for the individuals to communicate and move forward upon a relationship breakdown. It is a confidential process, led by the individuals involved.

What are the current rules in respect of attending mediation?

Mediation is currently a voluntary process; neither party to a dispute can be forced to attend as a way of resolving their issues. However, before making a Court Application, the applicant must first attend a MIAM (Mediation Information Assessment Meeting) unless there is a limited exemption that applies. Beyond this meeting, there are no further obligations to mediate.

Making mediation compulsory?

On 23 March 2023, the Ministry of Justice (MoJ) launched a 12-week consultation on proposals to make mediation mandatory (in England and Wales) in appropriate cases such as those without domestic abuse allegations, urgency, or certain child protection circumstances. The aim is to protect children “from the damaging impact of bitter courtroom battles” and enable the family Courts to prioritise and provide protection for the most serious cases. The MoJ believes mandatory mediation could help up to 19,000 families a year resolve matters away from Court proceedings, whilst reducing backlogs and easing pressures on the Court.

The proposals will look at imposing costs orders on those who do not try to mediate and would also extend the use of co-parenting programmes by making them compulsory before court. Currently families are often referred to programmes by the Court during proceedings.

In addition, the government aims to provide a further £15 million in financial support to families with an extension to the Mediation Voucher Scheme. This scheme provides eligible separating couples with vouchers up to £500 to help them resolve family disputes through mediation. The consultation will state the intention to fully fund the cost of mediation in relation to child arrangement cases and seek views on whether finance remedy cases, such as divorce, should be funded under legal aid thresholds. 

A welcome change?

There seems to be a general optimism amongst family law professionals about the government recognising the value of helping separating couples make parenting and financial arrangements without the delays, emotions and stress of going to Court. The costs implications are also noteworthy. Mediation is already more cost effective than Court proceedings. If less people proceed to Court by attending mediation, that can only be positive outcome.

However, many professionals may also agree that making mediation compulsory might best be considered with caution. One of the main principles of mediation is that individuals enter the process voluntarily. Compelling their attendance does not correspond to this and so one might question how effective mediation will be in resolving disputes in such cases.

Lucy Hadley, Head of Policy at Women’s Aid urged clarity from the MoJ on how they “will ensure domestic abuse survivors will be kept safe, and allegations of abuse will be properly investigated”. This is in light of domestic abuse survivors often they will be accused of alienating the other parent if they raise the abuse. She also highlighted this lack of disclosure means excluding domestic abuse cases from mediation will not always work and there is a “fear that women will be re-traumatised by mediation with their perpetrators”.

Richard Miller, the Law Society’s Head of Justice, commented that mediation is "absolutely vital" in many cases. However, it could lead to "unjust outcomes" and “risks sending people to mediation who should not be there”, particularly in relationships where there is manipulative behaviour or coercive control. 

Juliet Harvey, chair of Resolution (a body representing family justice professionals) commented that whilst mediation “is not right for everyone and works best when it is done voluntarily – forcing parents to choose a route that may not be suitable for them is not the answer. It may leave them without a lasting solution and could mean they end up needing more help and taking up more court time further down the line.” She instead suggests couples should be provided with information on routes to provide the best chance of reaching constructive and lasting outcomes. By giving people information on the various routes, and early legal advice, they are in a better position to make informed choices on family issues. 

As members of Resolution, our team agree. We help clients daily to try and avoid Court and advise on several alternative methods of dispute resolution at the very start of a case. We are committed to assisting clients deal with matters in an amicable and non-confrontational manner from the outset. Members of our team offer mediation services and the collaborative law approach already. The government may need to look at additional ways of resolving disputes beyond compulsory mediation to see an extensive reduction in cases going to Court.

We would recommend seeking legal advice prior at an early stage following a separation or family dispute so that we can advise you on your options going forward. Our specialist Family Law team can advise on the above and related matters.

The MoJ’s consultation closes on 15 June 2023 and we will provide an update once it has been published.

For further information or legal advice, please contact or call 0118 951 6800.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Catherine Currie

Catherine Currie

Associate Solicitor, Family Law

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