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Could it be time to make family mediation mandatory?

In March we blogged about the Family Mediation Council’s new voucher scheme.  It was set up to make it easier for families to access experienced mediators and has been warmly welcomed.  However, has it gone far enough? Given the enormous backlog at the family court, perhaps it is time to make family mediation mandatory.

It appears it is a train of thought that is starting to gather momentum.  The government has been very public about their desire to find a way to reduce the backlog.  And, at around the time voucher scheme was launched, it was revealed that mandatory mediation for civil cases was being considered as the commercial courts looked to reduce their own backlog.

The argument for making family mediation compulsory is not a new one.

In 2005 ‘Intervening in litigated contact: ideas from other jurisdictions’, a briefing note published by Oxford University, suggested mandatory mediation should be considered.  Their review showed more satisfactory outcomes from mandatory mediation than from voluntary mediation.

Despite the evidence ministers debating the Children and Adoption Act that came into force in December 2005 decided that while mediation should be encouraged, it shouldn’t become mandatory.  They felt the voluntary aspect was one of the mediation processes key strengths.

In 2013 the government returned to the subject of mediation and, against expectations, made mediation information and assessment meetings (MIAM) compulsory in England and Wales.

However, if the government is serious about reducing the backlog at the family court, it could well be time to reopen the conversation about making mediation mandatory.  While the voucher scheme has made mediation more accessible, a greater take up must be beneficial to our overrun and overworked family courts, especially if judges can remind separating couples the option to take a different, more collaborative route is available to them.

There will always be those who will continue to support the voluntary aspect of family mediation, not least because it gives participants the option of leaving the process at any point should they feel it is not delivering what it should.

However, perhaps if every couple was required to try to get to that point having opened a meaningful discussion about their situation, family, assets and property with the support of a trained mediator, at least some of the burden would be taken away from the courts.

I’d also be willing to bet that having engaged in a mediation, the majority of couples will stay the distance recognising they are in control of their situation and able to take a more measured, more productive and less stressful route to the best possible outcome.

At Collins & Hoy we specialise in family mediation.  If you would like to ask us any questions, please email Bernadette.Hoy@collinshoy.com or Aisling.Collins@collinshoy.com call us on 020 8866 1820.