The Ministry of Justice has recently disclosed plans suggesting that mediation could become compulsory for ‘suitable low level’ family cases. However, those involving issues of domestic violence would be excluded. B P Collins family team comments on the new proposals.
The plans include that all suitable low level children disputes would be publicly funded with those involving financial remedy disputes being considered if they are below the legal aid funding threshold. In all other cases, mediation would need to be funded by the parties.
As part of the proposal, judges would be given the power to order parents to make a reasonable attempt to mediate and enforce financial penalties on parents who are acting unreasonably and not in the best interest of the children by engaging in prolonged child proceedings.
The Ministry of Justice estimates that by making mediation obligatory, 19,000 families facing separation will resolve matters without the court’s assistance.
The government’s consultation opened on 23 March and is due to close on 15 June 2023.
The family team at B P Collins is fully supportive of the mediation process and always encourages clients to try alternative forms of dispute resolution where it is possible, and reasonable, to do so.
However, there is a concern that making mediation mandatory is likely to have a negative impact for many reasons for example:
- Cases involving more subtle forms of abuse such as emotional abuse, psychological abuse, and financial abuse, might not cross the threshold of domestic violence. In abusive relationships, mediation can be a tool to further the abuse and in particular, where there is no parity in the relationship and one party is being bullied, it can lead to them agreeing to an outcome that isn’t fair.
- It could unnecessarily elongate and increase the cost of the process for parties where mediation isn’t going to be helpful, such as where there is a binary decision to be made, or when one party is very entrenched or difficult, and is not willing to negotiate.
The Government’s financial investment in funding mediation is likely to be considerable. Arguably this money would be much better spent funding early legal advice for those that cannot afford it, which is likely to be a very significant proportion of those currently applying for the court’s assistance. If parties to litigation understood the legal landscape before embarking on court proceedings it may deter many cases from even requiring mediation, let alone court proceedings.