Is Mediation Compulsory?
For a number of years it has been necessary to attend an information meeting about Mediation prior to the commencement of non-urgent children and financial family court cases. However, the actual participation in mediation has been voluntary – up until now.
Mediation is a process in which an independent, professionally trained mediator helps you work out the arrangements for your children and or finances after the breakdown of a relationship. Many mediators, like myself, are also family solicitors, so we are well aware of legal issues and will explain what needs to happen to make any agreement you make in mediation legally binding. When I work as a mediator, I do not give legal advice, only legal information. Mediators are neutral and do not take sides or impose a decision on you. The process is to help you find a solution that works for you both.
It has been reported recently that the Ministry of Justice is considering a plan to insist that separating parents try to resolve arrangements for their children and/or their finances by using mediation. Court would then only be an option in the event that mediation is unsuccessful. This is a significant change as it means that mediation would become compulsory, not voluntary.
This proposal is currently subject to a Government Consultation process, which closes on the 15th June. If implemented the proposal will mean that Judges will be given a new power to order parents to make a reasonable attempt at mediation with financial consequences if they act unreasonably and harm a child’s wellbeing by prolonging Court proceedings. However the proposal does exclude families were there are allegations of abuse or a history of domestic abuse.
It is the Government’s aim to reduce the number of cases in the legal process in an attempt to reduce the strain and backlog in the court system. In support of the plans the former Justice Secretary Dominic Raab stated: “When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s schoolwork and mental health.”
The Government claims that up to 19,000 separating families could resolve their issues away from the Court. The problem with this approach is that it sidesteps the fact that few would go to court unnecessarily, and you cannot mediate with someone who is fundamentally unreasonable or cannot tolerate or discuss compromise. It means that in future, if you need to ask the court to intervene, for example because compromise is not possible, it will be important to explain to a judge why mediation might not/has not worked, to avoid being sent back to that process.
It is also proposed that the current Government family mediation scheme will be extended until August 2025. The vouchers, which are currently worth up to £500 per couple, are designed to help and encourage attendance in mediation.
It is usually worth considering if mediation might assist in settling a dispute unless there are safety or other issues making it an unwise choice. If you do mediate, it is important to take legal advice first so that you are aware of the legal issues around the conflict, or for example if you need legal advice or action regarding issues of safety/abuse/unfair allegations.
If you have any questions, please feel free to email me on [email protected]
Sarah Beskine
Specialist Family Lawyer and Mediator