Government rejects reform proposals for cohabiting couples
Read More
The Ministry of Justice has recently announced that it would no longer be pursuing plans for mandatory mediation for parents and couples to resolve issues in respect of their children and finances.
When making the announcement, Lord Chancellor and Justice Secretary, Alex Chalk KC, said, “There is no one-size-fits-all approach for separating families, which is why we’re ensuring people have access to early legal advice and mediation to resolve disputes as early as possible.” He went on to say, “These reforms will help spare thousands of children the long-term harm of lengthy, combative courtroom conflict.”
There are now two additional schemes to assist families and separating couples
Legal advice pilot
In place of mandatory mediation, “a legal advice pilot will be launched to help families agree child arrangements quickly, addressing barriers to early resolution including a lack of understanding of the options available such as mediation.”
The introduction of the legal advice pilot scheme is greatly welcomed. The very first thing people need when faced with difficult circumstances is advice. Easier access to early legal advice specific to them and their needs will enable people to make informed decisions about how to move forward, hopefully on an amicable basis away from the courts.
Pathfinder court pilot
In March 2022 the Pathfinder court pilot was launched in North Wales and Dorset, to support victims of domestic abuse and “to improve information sharing so that victims avoid retelling traumatic experiences.”
Following this initial 2-year period, the pilot it is now set to expand to two more family courts, in Birmingham and Southeast Wales, ahead of a national roll out. It is hoped the pilot will promote better information sharing between agencies like the police and local authorities to prevent users of the scheme having to go over and over their stories. “Crucially, it will also boost the voice of children at every stage of the process, ensuring they are listened to, and their views are taken into account when decisions are made about their futures. It will see children given more opportunity to explain how they feel and, following a court order, to say whether it is working for them.”
Mediation
The decision to scrap mandatory mediation – which is very much welcomed by family law professionals and mediators – came about following widespread criticism of the scheme, which had formed part of the ‘Supporting earlier resolution of private family law arrangements’ consultation paper, launched by the Ministry of Justice in 2023. Serious concerns were raised about this consultation paper, which essentially forced people into mediation: a counter-intuitive measure that would be wholly inappropriate for some people, not least raising serious safeguarding issues for those surviving domestic abuse.
Nevertheless, there is no doubt that mediation is an invaluable tool and can be extremely effective when helping parents and couples reach agreement in respect of their children and finances, without the need for court intervention. The mediation voucher scheme has, as at December 2023, helped in excess of 24,600 families. The scheme has now been extended until April 2025 with an additional £15 million of funding.
People cannot and should not be forced into mediation, however: mediation will not work for everyone, so it is important that parties who commit to the process do so voluntarily.
When considering whether to commit to mediation, perhaps consideration ought to be given to the alternative court route. The statistics for the number of court applications and the length of time the court process can take make for grim reading. In 2022, more than 66,000 private law children and contested finance cases went through the family courts, taking on average 47 weeks to reach a conclusion. That includes private law cases involving children. That is 11 months. Eleven months of a child’s life when they could be starting school, transferring from primary to secondary education or indeed taking their exams.
Consideration should also be given to the profound impact that parental conflict can have upon children. The “long-term conflict between separating parents can have a devastating impact on a child’s wellbeing. The trauma has been linked to increased rates of anxiety, aggression, and depression, and can lead to anti-social behaviour, academic struggles, and substance misuse.”
With the ever-increasing pressure upon the court system, and the awareness of the emotional impact upon families, something has to change. Whilst it has been accepted by the Ministry of Justice that mandatory mediation is not the best way forward, change within the court system must also follow so that those who have no option but to litigate can reach a satisfactory outcome more speedily.
Amendments are being made to the Family Procedure Rules 2010, which will come into effect in April 2024, enabling the court to take a view as to whether the parties should consider using non-court dispute resolution. Pursuant to FPR 3.3 (1A), the court will be able to require parties to complete “a form setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings.”
Non-court dispute resolution “means methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law”.
Mediation can play an important and vital role in helping to ensure that couples and, more importantly, their children are shielded from protracted, damaging courtroom conflicts. Mediation must therefore be given very serious consideration as a way in which to resolve matters and reduce conflict, but alongside other methods of noncourt resolution, some others of which may be better suited to survivors of domestic abuse or those with unequal bargaining power.
At Teelan & Silwal, we will discuss with you whether any non-court resolution process, including mediation, could be an option for you. Rosalyn O’Donnell-Teelan is a trained and experienced mediator and if you would like advice about mediation, or the other non-court dispute resolution options available to you, please contact Rosalyn directly at rodt@tandsfamilylaw.com or email us generally at enquiries@tandsfamilylaw.com.
