The Ministry of Justice has announced that the government is scrapping their plan to make mediation mandatory for separating parents who want to progress their divorce though the family courts.
When first announced the proposal to make mediation mandatory for separating parents was described as a “major shakeup of the family justice system” and a way to shield thousands of children from having to witness their parents “thrash out” their divorce in front of the courts. However, following a consultation process launched in the Spring of 2023, the government has decided not to continue with their plan to make family mediation mandatory for separating parents.
The plans proved controversial with lawyers, charities and the other organisations working with separating families from the off. This is despite the fact the government had positioned their proposals as a way to take acrimonious and potentially drawn out disputes away from the already stretched family courts while, at the same time, reducing the enormous number of private law cases.
The volume of cases had seen the length of time involved in obtaining a final court order increase to 45-49 weeks in many cases and even over a year in some. This was obviously placing huge strain on children who didn’t know where and with whom their futures lay.
Critics raised that mandatory mediation could place vulnerable people at even greater risk. Some mediators worried that forcing people through the mediation process rather than letting them choose it as the best way forward for them and their families would dent the purpose and benefits of mediation. Many voiced their support for the decision to shelve the proposal when it was announced.
Lucy Hadley, head of policy at Women’s Aid, said that her organisation had:
“Warned that proposals to make mediation mandatory in family courts would put the safety of survivors of domestic abuse at risk so we are pleased the government has listened to the sector over the dangerous policy. Abuse does not end when the relationship ends and separation is an intensely dangerous time for women and children. For many survivors, domestic abuse escalates within the family courts and compulsory mediation would have given perpetrators increased power and tools to abuse.”
Meanwhile Gingerbread, an organisation that campaigns for single parents and their children, also welcomed the news:
“This is welcome news for Gingerbread and our single-parent community. Along with many other organisations, we were deeply concerned about the possible of impact of forcing people to engage with their ex-partners through mediation. We know that this can be particularly traumatic for survivors of abuse.”
The legal industry has also welcomed the news, most prominently via a statement made by Lubna Shuja, the current President of the Law Society of England and Wales:
“No form of dispute resolution should be mandatory. Attendance must be voluntary for it to be effective. Most couples try to avoid costly court litigation and delays to resolution. The types of cases that do require a court hearing or court process – and would be impacted by the compulsory mediation scheme – are complex in nature. Complexity needs to be considered, otherwise these proposals could risk harm being done to vulnerable people who are legitimately seeking a court hearing.”
When the Ministry of Justice (MoJ) announced that they would not be pursuing a change in the law on Friday 26th January, they said they would be introducing alternative new measures to protect children from the impact of long and stressful disputes. These measures could include easier and earlier access to legal advice, better training for mediators and the extension of a pilot programme that provides post-court support to the victims of martial abuse and their children.
There is also discussion regarding the extension of the so called “pathfinder courts”. These are the courts in Wales and Dorset that have been trialing new ways to resolve private law children cases involving allegations of domestic abuse.
The government has also said it will be working more closely with the Family Mediation Council who themselves have just finished Family Mediation Week when they ran a series of events designed to promote awareness of mediation. Their aim is to improve the training mediators receive on handling cases involving domestic abuse victims. This is also likely to include developing more effective ways to screen clients to identify potential victims as early as possible.
It is unclear at this point what the future will hold for the government’s funded mediation voucher scheme.
As of December 2023, the scheme had helped more than 24,600 families tackle their situation without having to go to court and, according to justice secretary Alex Chalk KC, who said that the mediation voucher scheme “spared thousands of children the long-term harm of lengthy combative courtroom conflict.”
We’d like to think that in the view of their comments regarding taking greater care to protect children from the impact of divorce, the government would be inclined to extend the scheme indefinitely.
If you would like to find out more about family mediation or discuss whether mediation could provide an easier way for your own separation, please contact either of our qualified mediators, Bernadette Hoy or Aisling Collins, today.