As the government’s consultation regarding compulsory mediation in private family law cases approaches its closure next week, Maeve Lucey, solicitor in our Family Law team, shares her thoughts on compulsory mediation, and the alternatives.

The government is currently engaged in a consultation regarding compulsory mediation in private family law cases, including financial remedy cases and disputes concerning arrangements for children. Hoping to build on the success of the mediation voucher scheme, the government appears to be trying to redirect potential litigants away from the courts, and into mediation. This has the dual benefit of relieving pressure on the court system and helping families to resolve their difficulties without involving the courts. This would in theory free up court time so that the more complex cases, which do require judicial intervention, do not get unfairly delayed. It will be very interesting to see how participants respond.

Is compulsory mediation the answer to the current crisis in the family justice system?

As family law professionals well understand, the family justice system is cracking under the pressure of a sustained lack of funding, and possibly a lack of awareness in the wider community of other options available to separating couples. In that light, it would seem as though compulsory mediation could alleviate the stress the system is under, whilst also raising awareness of mediation for separating couples. In addition, mediation has a high success rate and comes at a much more affordable cost in comparison to litigation.

Throughout my career in family law, mediation has always been a forum within which couples can resolve their issues and disagreements surrounding their separation, voluntarily. The idea that mediation would become compulsory doesn’t, in my view, sit well with the status quo that it is a voluntary process. Could making mediation compulsory result in less people willingly engaging in the process? If a couple are told that they must attend mediation, will they do so with no real intention of trying to resolve their disagreements? On the other hand, I very much support and encourage the idea that the availability of non-court resolution is publicised to a much greater degree than it currently is.

Many clients come to take advice and some have never heard of mediation, which is the most well-known of these alternatives to court proceedings. If the availability of mediation is not on people’s radar, then it is likely that the wider community is also unaware of the solicitor neutral process, arbitration, collaborative law and other non-court resolution options.

While attending the recent Resolution National Conference in Brighton, I finally had my eureka moment during the question time panel. Perhaps compulsory mediation is not the answer! Rather, compulsory engagement in some form of non-court resolution. In my view, this gives our clients something they often desperately need at a time in their lives that is confusing and stressful – agency. It puts the ball in their court, and they may then feel that they have some control over their circumstances. They get to choose something rather than feeling overwhelmed with information that is dense and difficult to process, even for us lawyers at times.

It would also give us, as family lawyers, the opportunity to learn and understand more about these forms of resolution of family law issues and enable us to steer our clients towards the most appropriate form of non-court resolution for their particular circumstances.

Mediation is a fantastic option, but it is not for everyone. And I think it should be one of several options available. Our clients are people who have lives, hopes, dreams and problems just like we do, and they should be able to rely on us to help them to choose the most suitable form of resolution for their needs.

The consultation closes on 15 June 2023. Be sure to have your say!