Mandatory Mediation

Managing Partner Katie McCann discusses the government’s proposal to mandate mediation services in low-level family proceedings in The Legal Diary.

Katie’s article was published in The Legal Diary, 6 April 2023, and can be read here.

The government’s latest proposal to mandate mediation services in all low-level family proceedings disputes represents a step change in how family separation is handled in the British family justice system.

Against a backdrop of severe backlogs and thousands of families dragging out their disputes in the court room, this common-sense reform promises to ease the strain on the court system while streamlining the process of reaching an amicable agreement for both parties and, most importantly, for the children.

Mediation as an alternative to court is hardly a new idea in family justice; the current law stipulates that separating couples must at least consider using a mediator before advancing to court. The proposed changes, however, look set to greatly expand the role that mediation fills, where mediation services will no longer be a consideration but rather a mandatory prerequisite before escalating matters to the court room (provided that safeguarding is not a concern as in the case of domestic violence and abuse).

Mediation has always been far preferable to court proceedings in settling the affairs of separating couples. Not only is it cheaper, but it is also swifter, more effective at producing an agreeable outcome, and a less acrimonious process for all involved.

Children, who often find themselves stuck in the crossfire of bitter courtroom battles, stand to benefit greatly from this overhaul, and the changes should go a long way towards decongesting the over-burdened and under-resourced family courts. With more straightforward cases settled through mediation, the courts will be free to adjudicate on disputes which cannot be resolved informally or have complex issues to untangle.

Keen observers will rightly ask whether these new plans have been put forward solely because of their merits, or whether they are simply aimed as a release valve for a badly clogged courts system. There will still be couples who do want to head down a litigious path and see mediation as a dead end – their access to justice could arguably now be restricted by this policy directive.

It should be emphasised that it is because of the government’s prior shortcomings that the courts are in their current state. Public spending on legal aid for family cases has been neglected for too long, meaning that many have not been able to access the legal advice that could perhaps have averted an appearance in court in the first place.

Mediation being the first port of call for separating families is a welcome policy change, but it is no substitute for a well-resourced courts system that can capably handle all the cases that come before it.