Government Says No to Compulsory Mediation
In this blog FLiP Director and Mediator Helen Greenfield comments on the government’s previous proposal to make mediation a compulsory process for separating families. Instead the government have, scrapping that idea, confirmed a new focus on a pilot scheme, focusing on the provision of early legal advice.
One of the core principles of mediation is that it is a voluntary process. It is open to the parties to decide to leave mediation at any stage; they do not have to continue in mediation if they do not wish to.
Arguably, in direct contravention to this core principle, earlier last year the Government announced plans to make mediation compulsory for separating families. They said that this would mean “up to 19,000 separating families resolve these issues away from the courtroom, whilst also reducing backlogs, easing pressure on the family courts and ensuring the justice system can focus on the families it most needs to protect”. Whilst I can’t argue with the Government’s premise that it is usually better if people are able to decide things between themselves if they can, forcing them into a process, of which, one of its four pillars is built on voluntary participation, must be a contradiction at the very least. It raises the question as to, without this pillar, how successful mediation can be.
On a more sombre note, the Law Society and domestic abuse charities raised concerns that, although cases involving domestic abuse would be excluded from compulsory mediation, mandatory mediation might fail to safeguard victims, who would have no choice but to “enter into a process that empowers their abuser.”
It must be right that mediation will only be successful if both parties approach the process willingly and with an open mind. Forcing them into a process that is not appropriate may mean the parties’ separation is prolonged and safeguarding issues are ignored, adding further trauma to survivors of domestic abuse or worse.
All that said, on the last day of Family Mediation Week this year, 26 January 2024, the Government announced that, despite the announcements that it had made last year, they were no longer going to make mediation compulsory for separating couples. Instead they proposed to launch a new pilot focused on the provision of early legal advice. You can read more about the family court reforms outlined by the Ministry of Justice in this blog here.
The new pilot the Government is proposing to launch to provide early legal advice is, in my opinion, a positive development. One would hope that parties receiving quality legal advice at the outset of any separation will be much more likely to come to an agreement, avoid making application to court and consider other means of resolution, including mediation.
But, for this to work, the Government needs to put its money where its proposals are. It remains to be seen whether these proposals will be rolled out at all. If they are, they need to be properly funded to provide access for all and all involved must co-ordinate the implementation of the policy, including the Government, the judiciary, family lawyers, mediators and everyone included in the family justice system.
This is certainly the first step in the right direction but the crisis the Family Justice system is currently facing needs something less like a step and more like a leap! It remains to be seen whether the necessary level of change/ improvement will/ can be achieved.
Drawing on her experience as a family lawyer, Helen provides clients in mediation with the support needed to find solutions to issues arising as a result of divorce or separation. She aims to promote constructive dialogue, reduce conflict, and minimise the emotional and financial strain associated with the more acrimonious processes.