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Insights // 07 February 2024

Government's Plans for Mandatory Mediation in Family Cases Shelved

Senior solicitor Catherine Currie, in our Family Law team, provides an update on the Ministry of Justice's (MoJ) consultation on proposals to make mediation mandatory in England and Wales in certain cases.  

In April 2023 I wrote a blog article titled 'Could separating individuals face a penalty for refusing to try mediation?' Nine months on, we have an answer which in short, is “no”.

To recap, in March 2023 the Ministry of Justice (MoJ) launched a consultation on proposals to make mediation mandatory in England and Wales in certain cases. The proposals received a mixture of optimism and scepticism amongst Family Law professionals. The Ministry of Justice has now announced that following the consultation it will not pursue its plans for ‘mandatory mediation’. Instead, the plan is to ensure separating parents are offered legal advice to settle disputes and encourage the use of mediation as a priority to early resolution.

The response has announced a pilot scheme to fund the provision of the early advice for parents. The hope is this will “help families agree child arrangements quickly, addressing barriers to early resolution including a lack of understanding of the options available such as mediation.”

There will also be improved domestic abuse screening and advanced Disclosure and Barring Service (DBS) checks for mediation so that mediators can support children earlier in the process. Together with the mediation voucher scheme, the hope is more couples will be able to resolve matters before reaching a court.

Where proceedings cannot be prevented, plans are also in place to expand a pilot aimed at reducing conflict that took place in north Wales and Dorset to be expanded in family courts in Birmingham and south east Wales, before there’s a national roll out. This aims to improve information sharing between other agencies such as local authorities and police so that victims do not need to keep speaking about their traumatic experiences. To try and prevent further conflict, judges will also be able to view more documents before cases enter the court arena and children will have extra opportunities to express how they feel about decisions on their future.

Supporters of the news have commented:

Lord Chancellor and Justice Secretary, Alex Chalk KC:

“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.” 

Chief Executive of the Children and Family Court Advisory Support Service (Cafcass), Jacky Tiotto:

“One of Cafcass’ main strategic priorities is to improve the experiences of children in private law proceedings. There is so much more to be done to turn up the volume of their voices and to make them central to the business of the proceedings. We therefore welcome the heightened focus on children within the government’s proposals announced today.” 

Domestic Abuse Commissioner, Nicole Jacobs:

“The Family Court is critical in keeping child and adult victims safe from abuse. I am delighted that the Pathfinder Court pilots will be extended to two further sites, with a view to national roll-out. These courts take a child-centred approach, supporting victims and embedding an understanding of domestic abuse throughout the proceedings, which were key recommendations I made in my 2023 Family Court report. I welcome the opportunity to continue working with the Ministry of Justice to ensure that early resolution measures – such as provision of early legal advice, and reforming the family justice system to be less adversarial and more child-centric – will further improve the Family Court response to domestic abuse and protect child and adult victims from further harm.” 

Women’s Aid:

The charity Women’s Aid, which had previously warned about the danger in making mediation mandatory, said that this would put survivors of domestic abuse at risk and welcomed the “U-turn” announced by the MoJ.

Resolution, Jo Edwards:

Family Law body Resolution, which was also sceptical about the potential changes to compelling couples to mediate, have also welcomed the news commenting that “Resolution members are already helping people across the country do this every day and there is plenty of evidence to show the connection between couples receiving early legal advice and resolving issues on separation, in turn freeing up court time for the most needy cases (involving safeguarding issues or vulnerable people).

Our team also welcome the decision that has been made. Mediation is not right for every couple and it is fundamentally, a voluntary process. The risk of making it mandatory appeared riddled with risks to vulnerable victims and would undoubtedly have been unfair to enforce in every case. It is also hoped the new pilots to focus on reducing conflict will be of assistance to many who still require the court process to resolve matters. The introduction of funding for early legal advice should help reduce costs and delays in the court process in the long run."

Our specialist Family Law team can advise on the above and related matters.

For further information or legal advice, please contact law@blandy.co.uk 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

Senior Solicitor, Family Law

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