Should Family Mediation Be Compulsory (so long as safety isn’t an issue)?

Over the last 18 months, The President of the Family Division has warned that family court hearings are going to need to be cut back to the essentials as a way of managing the workloads.  He wrote in June 2020: “If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing.”  And a year later: “I make no apology for repeating this central message. There is a need for us all to redouble our efforts..”

The frustration of the judges is palpable: time and again they are spending significant amounts of time on cases that could have settled. They no doubt watch parties leave their court room at the end of the court day knowing that the parties can see it too: that they could have settled their case and been better off, moving on with the next chapter of their lives months earlier. Where the parties are paying for representation, they have often spent what stood in issue between them or more.

Despite the judges repeating their messages, the queues are growing and the wait for court dates is stretching out ever-longer. The sharp-end of the problem is the self-representing parties who, without the discipline of having to pay for their court-journey, are starting out on that road in ever-increasing numbers.

Little wonder that the discussion has started – “could mediation not be made compulsory?” – that parties are only permitted to go to the family court if they have already had an authentic or meaningful engagement in mediation (save, for example, where there are real questions about safety).

This was the proposition that FLiP Director James Pirrie presented at The Family Mediation Trust debate, seconding Karen Barham.  In doing so they took on one of the core principles of family mediation. These principles are:

• That the parties are the decision makers
• That the family mediator is impartial
• That the process is confidential; and
• That it is voluntary.

Karen and James’ proposition was that the times had changed; that it was time for family mediation to integrate within the wider family law processes; and that there were four factors that commanded this change to help normalise family mediation as the required entry point for resolving issues, where safe:

• The administration of justice (the court system needs court case numbers to be reduced)
• Family mediation provides cheaper solutions and so strengthens the family
• Its solutions are often more creative – providing better futures for children, particularly where, as now, court time is constrained for any case; and
• Parties who have mediated are building their capacity to resolve the future issues they will face together too, saving the family the risk, trauma, effort and cost of future court cases. (Whilst those at court are just building their litigation habits).

The reform would pose five questions:

1. How we can best communicate these different roles so that parties make appropriate choices between the services on offer.
2. How standards are maintained across the family mediator profession (for example as regards identifying domestic abuse and giving accurate information on legal rights).
3. Whether funding will be made available for those who need – but cannot afford – family mediation services.
4. How information will pass from family mediator to court so that the court is able to police parties compliance with their duties to engage meaningfully in mediation where safe; and
5. What steps should the court take when those duties are not met.

And we nearly got there – the vote settled at 49:51.  This is unlikely to be the end of the story. The Ministry of Justice has recently called for evidence on how dispute resolution should be developed in the years to come – a debate that is likely to be as lively and will rumble on for a considerably longer period.