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Family mediation: should it be voluntary or not? (First published in the Solicitors’ Journal)
Mediation has no single definition, but most would agree that mediation is voluntary. All that could change, however, if the government gets its way, says Tony Roe.
According to government figures, every year around 55,000 families end up in the family courts to work through their differences and resolve their disputes.
This type of dispute resolution has been around for over 30 years. The judiciary’s mediation guide outlines that the mediation process is governed by four principles. The first of these is that mediation is voluntary. Both parties and the mediator have to agree mediation is suitable.
In a consultation the government proposes that more disputes could be resolved without going to a courtroom, sparing families from unnecessary stress and children from avoidable anxiety. It emphasises that the clear exception to this would be with cases involving domestic abuse or child protection concerns, which must go to court. It claims that, by reducing the overall number of disputes from reaching court, these cases can be heard more quickly.
The government says, “Mediation can play a role where there is the will to find common ground – not just between separating parents or couples but other family members as well. This is clearly demonstrated by the success of the Government’s Mediation Voucher Scheme.”
With a 69 per cent success rate, the scheme has apparently made it possible for over 13,500 families to enlist the help of mediators and reach full or partial agreements. But the key proposal is enforced mediation: “…we want to empower judges to hold accountable those who do not engage seriously with mediation, and who draw proceedings out unnecessarily by refusing to reach reasonable settlements.”
At present, under Family Procedure Rules 2010, the court can adjourn proceedings or a hearing in proceedings, if the court considers that non-court dispute resolution is appropriate. However, only if the parties agree can it enable non-court dispute resolution to take place.
The only compulsory aspect of mediation is a ’Mediation Information and Assessment Meeting’ (MIAM). Under section 10(1) of the Children and Families Act 2014, it is a requirement for a person to attend a MIAM before making certain kinds of applications to obtain a court order. The person who would be the respondent to the application is expected to attend the MIAM. A MIAM is a short meeting that provides information about mediation, collaborative law, and arbitration as a way of resolving disputes. It is conducted by a trained mediator who assesses whether mediation is appropriate in the circumstances. There are exemptions to the MIAM requirement, notably where there is domestic violence.
On 15 June 2023, Resolution, the campaigning body representing 6,500 family justice professionals, responded to the consultation. In its response, Resolution stressed that, mediation helps, and will continue to help, many families who choose to use it. However, it added that it is not right for everyone, and should not be forced upon anyone. It went on to say that other forms of out of court dispute resolution need to be considered and funded. Finally, and crucially, it said that families should also be provided with access to early legal advice.
The Law Society was at one with Resolution. It said that couples should not be subject to mandatory mediation, as putting barriers in place to attending court is likely to deny access to justice,
Meanwhile, director of the Family Mediation Council, Caroline Bowden, gave evidence before the Justice Select Committee in Parliament on Monday 19 June 2023. She made it clear that mediation was an inherently voluntary process. So, whilst it was possible to make attendance at the initial, one-to-one meeting compulsory, no one can be forced into mediation.
Lord Bellamy setting out views of the Select Committee favoured no compulsion, greater consideration to all forms of dispute resolution and proper voucher funding for them.
I agree with the combined view of Resolution, the Law Society and the Select Committee. As was apparent at straw poll at the Resolution conference, a good many mediators disagree with me. It will be interesting to learn the outcome of the consultation which no doubt will appear after the summer.
Tony Roe is a mediator, working towards accreditation, a collaborative lawyer and family arbitrator. He is a partner at Dexter Montague.
Our key contacts at DMP for further advice and assistance on mediation and other dispute resolution issues are Stephanie Alderwick and Tony Roe:
Telephone 0118 939399.
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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.