In March 2023, the Ministry of Justice (MOJ) published a recent consultation paper on taking the compulsory element of private family law mediation a stage further . At present, people involved in a family dispute must attend an individual Mediation Information and Assessment Meeting (MIAM) with a mediator, unless they meet one of fifteen exemptions. They (and the mediator) then decide if mediation is a suitable way to move forward with child arrangements and/or a financial remedy.
The paper reports that, at present, only a disappointing 33% of people seeking a resolution to a family dispute have a MIAM. The courts have the power to explore the reasons people feel they are exempt, but rarely do so (especially in child cases). It’s especially hard to avoid a MIAM.
With a view to reducing both the large backlog of cases in the family court and delays in processing cases, in addition to seeking a less adversarial experience for both couples and children, the MOJ are considering taking the compulsory element of mediation a stage further. Instead of being able to simply decline mediation, without a justifiable reason, after the MIAM, couples will be mandated to engage in a joint mediation session to seek resolution. At this meeting, they’ll be expected to make a ‘reasonable effort’ to find a joint solution. In addition, if a MIAM is declined, the courts will have a greater obligation to explore the reasons why.
This proposal is backed up by continuing with two existing government commitments for financing family law mediation – means tested legal aid and a non means tested voucher scheme, both giving people access to a limited number of mediation sessions.
Although the courts can already award costs against people who had no good reason to avoid mediation, the paper encourages the courts to greater use of their powers, as a deterrent.
Whilst I’m broadly in favour of extending the use of mediation in family law, two elements of the paper fill me with apprehension. Firstly, the voluntary nature of meditation is a cornerstone of the mediation process – agreements in mediation work because the parties are not forced into accepting anyone else’s decision. Secondly, the proposals suggest that mediators may have to provide the court with a judgement on the ‘reasonable attempt’ made by the people involved, if one withdraws from mediation. This threatens a mediator’s impartiality – I don’t make judgements, I support everyone involved in the a mediation to find a solution that best suits their needs, whether they are co-operative or not.
So could an element of compulsory mediation be extended to all civil cases? The short answer is perhaps, but not anytime soon. The proposal to make mediation mandatory for civil cases has been around for a number of years (see Hillard 2022). Although the government will probably continue to seek to reduce the cost of civil actions (the consultation identifies that 80% of court costs in family cases are paid for by general taxation) and experiment with less adversarial approaches to resolving disputes, a lot will ride on the success of the MOJ’s family law proposals if implemented.
The proposal is available at: https://www.gov.uk/government/consultations/supporting-earlier-resolution-of-private-family-law-arrangements
Hillard. S. (2022) Integrating ADR into the Civil Justice System: is compulsion necessary or desirable? Available at: https://www.barcouncil.org.uk/resource/integrating-adr-into-the-civil-justice-system.html