The Ministry of Justice ("MOJ") have now announced that these proposed plans to divert separating couples into mediation in an attempt to avoid court proceedings will not be implemented. On 23 March 2023, the consultation paper "Supporting earlier resolution of private family law arrangements" was published, with responses received from a wide range of stakeholders. The ultimate conclusion of the Government response on 26 January 2024, was to focus instead on piloting a service for early legal advice and extend the "Pathfinder" pilot, which applies a "problem-solving" approach to private child law proceedings, to all courts in England & Wales. The Government will also continue to invest in its Mediation Voucher Scheme, which offers vouchers of up to £500 towards mediation costs for eligible families.
Alternative dispute resolution
According to figures from the MOJ, there were more than 60,000 judicial cases involving disputes about the care of children or finances upon separation in 2022. Responses to the Consultation referred to far too many cases ending up in the court system unnecessarily, where alternative dispute resolution ("ADR") may have been suitable instead. ADR, which includes mediation and arbitration, can often be a quicker, more efficient and less stressful way of reaching settlement than a court proceeding. When parties mediate, they meet with a specially trained mediator (who may also be a family solicitor) on a confidential basis to work towards a mutually acceptable resolution. The mediator is impartial and facilitates conversations between the parties so that discussions are focused allowing parties to come to solutions which work for them and their family. The mediator is not an advocate for individual parties in a way in which a solicitor may be, nor a decision maker akin to a judge.
Concerns raised in the consultation
The Consultation proposed that parties would be obliged to attempt mediation ahead of any application to the court to resolve a dispute related to matrimonial finance or child arrangements. This requirement would not have applied where there were concerns around domestic abuse or other safeguarding issues that meant mediation would be unsafe. However, concerns were still raised by the respondents.
The Law Society of England & Wales were among the respondents who flagged that it may be challenging to screen such cases in order to apply the exemption. It is not unusual for victims of domestic abuse to not realise that they are victims, especially at the early stage of separation and where the abuse is not obvious when the initial interaction with a mediator takes place. Difficulties may also occur if an attempt to contact domestic abuse services or police is used to evidence abuse, as not all victims do so.
Many respondents and mediators also consider the voluntary nature of mediation to be fundamental to the process itself. Unlike much of the court process, mediation operates on a consensus-based system, whereby success is often dependent on parties' willingness to engage and work towards solutions. Mediation provides a setting where parties can freely talk through their disputes, facilitated by a trained mediator who works with them to reach a mutually agreeable outcome. Whether compelling parties to attend a mediation would even be practicable, let alone help in creating a conducive environment for discussion, is a question that many mediators would find themselves asking when presented with such a situation.
Mediation as a tool for resolution
Nonetheless, family mediation remains an increasingly popular option for many separating couples and a priority of the UK government. We welcome its expanded use as an alternative to the court process.
Where separating couples have links to both Scotland and England and Wales, co-mediations can offer an opportunity to reach an agreement that is as individual as the parties' circumstances. In particular, where there are jurisdictional issues which may be a point of dispute in a divorce, or as a consequence in the related financial applications about the family assets; or in child matters, such as where relocations are considered from one part of the UK to another part.
Co-mediation with both Scottish and English trained mediators is a forum to discuss and potentially resolve these issues. Here, a hybrid approach regarding the families' finances and children can be discussed, and alternatives found which are mutually acceptable to both parties.
In some cases, and where suitable, Child Inclusive Mediation can also be undertaken. This involves the child being given the opportunity to meet with the mediation (on a voluntary basis) to help their voice be recognised in the process.
How our family law experts can help
Morton Fraser MacRoberts offers family mediation services to separated couples throughout Scotland, England & Wales. Our mediators can conduct mediation sessions from our Edinburgh and Glasgow offices, and also virtually. Savita Sharma (who is a Dual Qualified solicitor (Scotland, England & Wales)) is an English trained family mediator, meaning she's uniquely placed to offer mediation in terms of English law in Scotland. Along with her colleagues Lucia Clark and Karen Wylie (who are Scots qualified family mediators), she is also able to offer co-mediations where a hybrid solution may suit parties.
For more information on our mediation services, or to get in touch with one of our mediators, please see our Family Mediation service page.
