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Mandatory mediation: what it could mean for divorcing couples

Last week the UK Gov announced plans to introduce mandatory mediation for separating or divorcing couples.

This family justice system reform will make mediation mandatory in all appropriate family court cases. Under the proposals, divorcing or separating couples will be required to try to resolve child arrangements (custody) and financial arrangements through qualified mediation, with court action reserved as a last resort.

It is hoped that by assisting families to avoid court, backlogs will be reduced, allowing the family courts to focus on cases that require their protection the most.

Here, Stowe Senior Associate Filomena Sterkaj explains more.

What are the UK Gov’s mediation reform proposals?

The government’s new mediation reform plans aim to divert more family disputes away from our overburdened and backlogged family courts. Proposals call for mediation to be made mandatory in all suitable low-level family court cases, with the exception of those involving allegations or a history of domestic violence or concerns of child safeguarding.

The proposals aim to achieve multiple objectives:

  • Lowering demand within the family court system; freeing up resources to ensure that urgent cases are heard more quickly and reducing backlogs
  • Protecting children from the negative consequences of seeing their parents resolve family law disputes in court, a process that is frequently fraught with conflict.

Secretary of State for Justice Dominic Raab MP said “When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s school work, mental health and quality of life.”

If the proposal goes ahead, it is estimated that faster hearings and resolutions could benefit 36,000 vulnerable families each year.

So how will mediation plans work?

Under the proposed plans, separating couples will have to try to reach an agreement on their child and financial arrangements through a qualified mediator, reserving court action for complex issues or cases which have not been resolved via mediation.

It has been suggested that Courts could impose costs orders to hold people accountable if they do not make a ‘reasonable attempt’ to mediate.

In addition, the government’s Family Mediation Voucher Scheme will be extended until April 2025 backed by an additional £15 million in funding. The scheme provides separating couples with vouchers worth up to £500 to help them solve disputes through mediation and has so far supported over 15,300 families.

It has been reported that the voucher scheme has been beneficial for separating couples and their children. With further reports that an analysis of the first 7,200 users of the scheme shows 69% of participants have reached whole or partial agreements away from court.

What is mediation?

Mediation is a process in which couples work together to resolve their differences. Currently a voluntary alternative dispute resolution (ADR) option to assist families with overcoming disagreements, mediation typically minimises lengthy and acrimonious conflict, helping couples to maintain a constructive relationship – beneficial for both separated parents and their children.

Mediation is conducted by a trained and accredited mediator who serves as an intermediary, rather than providing legal advice. Mediation can play a vital role in helping separating couples achieve positive outcomes, protecting children from disputes, as well as reducing the burden on the courts.

Concerns about the mediation reform proposals

However, the mediation reforms have raised some concerns.

Firstly, the definition of ‘low-level cases’ and the process by which they will be assessed, are unclear. Furthermore, there are concerns that people will make false allegations against their partners in order to avoid mediation altogether. Equally, in cases where abuse or coercive control are unknown factors, victim-survivors may be coerced into participating, thereby empowering their abuser.

The Law Society president Lubna Shuja said: ‘The risk is that compulsory mediation could force the wrong people into the process, at the wrong time and with the wrong attitude for it to be effective. They need to be ready to mediate and have a full understanding of what the process will involve.’

Women’s Aid has said clarity is “urgently needed” to understand how the Ministry of Justice will ensure all domestic abuse survivors will be kept safe and allegations will be properly investigated.

The proposals are subject to a government consultation which will run for 12 weeks, closing on 15 June 2023.

Useful links

Stowe Support – Mediation

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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