The Family Court has been suffering from appalling delays for years. In an attempt to tackle this problem, the government is considering making mediation compulsory. One of the problems is that far too many people go to court when they should be using mediation to resolve family disputes. Yet, the Law Society and Resolution both oppose making mediation compulsory.
Why on earth would they do that, you may ask? Surely, if people are not mediating when they should be, then it should be made compulsory. However, the reality is it just isn’t that simple.
Mediation has many advantages over litigation through the court. It tends to be faster and less expensive. It allows the parties to keep control over the outcome, rather than placing it in the hands of the court. It allows them to take into account factors they agree are relevant, which a court may ignore. They can come up with more imaginative solutions than the limited range of things that can be imposed by the court. Perhaps most importantly, it enables to maintain or improve their ability to communicate, which is particularly important where they have children, whereas going to court will probably destroy that.
Mediation has been part of the government’s strategy for reducing court use since at least the late 1990’s. Initially, that was more about keeping the cost to the public purse down; more people mediating meant less demand for publicly funded legal aid to go to court. Then, about 10 years ago, as part to the coalition government’s austerity programme, legal aid was withdrawn from the bulk of family cases. Simply having a low income was not enough to qualify for legal aid; you now had to be a victim of domestic violence or abuse to qualify for private law legal aid. (Parents facing applications for care orders in relation to their children still automatically qualify for public law legal aid. It is also available for issues like female genital mutilation and forced marriage). Since then, any party who wants to make an application to the Family Court for a financial remedy order or private law orde relating to children had to first attend a Mediation Information and Assessment meeting (MIAM).
Mediation didn’t become compulsory, but attending a MIAM was (unless an exemption applied, such as being a victim of domestic violence or abuse). At the MIAM, the mediator would explain the pros and cons of mediation and try to assess if the case was suitable for mediation. If it was suitable (and most cases probably are), the client was nevertheless entitled to refuse to mediate if he or she did not wish to do so. I usually find that my clients want to mediate, but all too often when the mediator then invites the other party to attend a MIAM, they fail to even respond. This leaves the client with no real alternative other than to apply to the court for an order.
It is the voluntary nature of mediation that means that far too many cases which could be mediated end up in court. This also applies to other alternatives to litigation, such as collaborative law or arbitration. They are all excellent alternatives to court, but if the other side won’t agree to do it, court beckons. The other side is then obliged to take part in the court process and if they fail to do so, the court can make orders on their absences, including orders that they pay costs if they are uncooperative. Most people do turn up to court and then the court process rumbles on for months and sometime years until the parties either reach an agreement or the court imposes a solution.
Clients often ask me whether their ex will be penalised by the court for refusing to mediate and I have to advise them that it will make no difference whatsoever. Mediation is voluntary and their ex will not be criticised by the court for not doing it.
The government’s view is that making mediation compulsory would solve this problem. This is a significant change from the original position. I have trained and practised as a mediator (although now I limit my involvement in mediations to acting as solicitor and advising clients who are going through mediation and then formalising any agreement that reach in mediation). When I trained, I was taught that a fundamentally important part of the mediation process is that it is voluntary. Forcing people to mediate won’t work. If someone is forced to turn up to mediate, they are unlikely to meaningfully engage with the process and may actively seek to sabotage it, or to drag matters on for as long as possible in the hope that sooner or later the other side gives in. Regrettably, while many cases that end up in court should mediate, there are a significant number where it will always be a waste of time.
The justice secretary at the time, Dominic Raab, said: ‘When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s schoolwork, mental health and quality of life. Our plans will divert thousands of time-consuming family disputes away from the courts – to protect children and ensure the most urgent cases involving domestic abuse survivors are heard by a court as quickly as possible.’
The government’s proposals are that mediation becomes mandatory in all suitable low-level family court cases, excluding those which include allegations or a history of domestic violence. The overhaul could also introduce a new power for judges to order parents to make a reasonable attempt to mediate with possible financial penalties if they act unreasonably and harm a child’s wellbeing by prolonging court proceedings.
The Law Society opposes making mediation compulsory and argues that a better use of public money would be to provide funding for early advice from solicitors; it argues that “Advice provides a “reality check”, manages unrealistic expectations, assesses a client’s suitability for mediation and provides trusted, legal advice. Early legal advice helps reduce conflict early on and helps clients better understand the parameters of their case. This will create significant benefits for both mediation and court processes… There are also benefits for those who must go to court, helping people understand their case better, and helping clients access services they are entitled to in domestic abuse and child abuse cases.”
This would in essence be a return to the position that existed before the government’s legal aid reforms. Back then, legal aid firms had a contract to provide what was known as Legal Help (formerly known as Legal Advice and Assistance or “Green Form legal aid”), a limited amount of funding for initial advice and a little bit of work. However, the incredibly low rates for Legal Help (which I recall as a grand total of £91 or £136.50 if you drafted a divorce petition) or full legal aid (which was paid at increasingly unprofitable rates), meant that more and more firms gave it up. I am only aware of a handful of law firms in Essex and Suffolk who still undertake legal aid work.
Resolution also opposes making mediation compulsory. Grant Cameron, its recently elected National Chair stated “We believe that the needs of families would be more appropriately and better met, and demand on the family courts would be reduced, by helping more former couples and parents make informed choices to find the route that gives them the best chance of reaching constructive, lasting outcomes about child arrangements and family finances on divorce. This should include the provision of early, tailored legal advice, to encourage out of court solutions and give them the best chance of success.
We welcome anything that can help families avoid court where it is possible, safe and appropriate for them to do so, and understand that mediation will help many families, and can be a very effective method of resolving disputes. However, it is not a panacea, not right for everyone and not the only way of resolving issues.”
Resolution points out that deciding if parties had made a ‘reasonable attempt’ to mediate is problematic. One session, in some cases, could be qualitatively better than three in another. Asking mediators to provide information on ‘reasonableness’ could undermine trust.
Resolution’s recommendations are:
- Provide families with access to legal advice.
- Tailored legal advice should be available as an integral part of encouraging the use of out of court dispute resolution and maximising its chances of success, and to manage people’s expectations before the making of an application to court.
- Expand the scope of the existing Family Mediation Voucher Scheme voucher scheme.
- Vouchers should be available for mediation about finances on divorce, and for the drafting of consent orders, as well as mediations relating to child arrangements. The mediation process differs from the court process and the current restrictions can make the mediation process more complex and restrictive than necessary.
- Provide sustainable legally aided family mediation.
- Resolution has long called for a realistic increase in legal aid rates paid for family mediation; a separate fee element for child inclusive mediation where the mediator meets with the child; and properly funded MIAMs.
- It is essential to have a simplified process (to explain, evidence, apply and audit) to access eligibility for family mediation and to increase the number of families accessing/benefiting from it.
- Replace Statutory Mediation Information & Assessment Meetings (MIAMs) with Advice and Information Meetings (AIMs) delivered by a range of suitable family justice professionals.
- Giving both parties access to a broader and more rounded AIM would provide advice on options/processes and early legal information. It should be earlier in the separation process, before minds are set on court and an application to court is considered, about the different ways of proceeding and to help couples and parents make an assessment of what might fit best for their circumstances and produce a fair and lasting outcome.
I cannot disagree with the Law Society or Resolution about this. Removing legal aid in family cases was a massively short-sighted false economy. It may have relieved pressure on the legal aid budget, but it simply passed that burden to the Family Court. Solicitors who gave early advice acted as gatekeepers. We referred many of our clients to mediation and were able to advise people who had been invited to attend mediation that they should mediate. If those clients never see a solicitor in the first place, they are condemned to litigate.
Early advice will only be successful if it is properly funded. Few law firms do legal aid work of any kind now as they cannot break even, let alone make a reasonable profit. Furthermore, legally aided mediators are becoming the on the ground too. I am not aware of any legally aided mediators now practising in Colchester or Chelmsford.
Funding early advice and mediation is likely to result in greater and more successful mediation. Forcing people to mediate will just lead to a lot of very unsuccessful mediations that fail and have to go the court anyway.
1 July 2023
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