Government consultation on earlier resolution for private family disputes through mediation

As readers will no doubt recall, earlier this year the Government announced plans to protect children under new mediation reforms, in what the Ministry of Justice called a ‘major shake-up to the family justice system’.

The proposed changes will make mediation mandatory for low level family dispute cases, and in doing so protect children from the damaging impact of bitter courtroom battles, and alleviate pressure on the family courts.

In the weeks that followed the Government launched its usual consultation process, inviting responses from those most invested in the topic – namely organisations representing families, family justice professionals, and of course mediation service providers.

Needless to say, as the recently appointed Chief Executive of NFM (National Family Mediation), I welcomed the invitation to submit a response which is reflective of the views of all of our network of mediators.

Now, given that we are the largest provider of family mediation in England and Wales, consisting of a network of dozens of affiliated members, each of which is a not-for-profit family mediation provider in its own right, that’s not always an easy task.  

Despite our common goal of equipping couples and families in conflict to deal with their issues amicably and outside of the courtroom, there are the inevitable differentiating views on the many matters and proposed reforms that have cropped up over the years.

Having said that, while this topic did of course result in questions from across the group, given that our specialism is mediation, it probably comes as no surprise that on the whole we welcome the move.

What comes next however, in terms of what the final legislation will look like, how it will be policed, and how it will be funded, and the buy in from all of the relevant parties – including the courts, the mediators themselves and family solicitors – will prove critical in determining its success.

Not to mention the need for the Government to properly promote and champion the changes.

So, from the perspective of NFM, what needs to happen?

Firstly, emphasis needs to be placed on the fact mediation, when successful, is due to it being voluntary. When both parties want to reach a resolution. We need a fundamental change in the culture of the family justice system, and to do that we need to make people aware of the benefits.

The latest government data shows that the Mediation Voucher Scheme has now distributed almost 20,000 mediation vouchers, with analysis of the first 7,200 scheme users showing that 69% reach a full or partial agreement without needing to go on to court.

That will have had a huge impact on the emotional and financial cost of divorce and separation, not only on the couple involved but also the children. Furthermore, the MoJ says that by making free mediation part of the litigation journey, it could free up nearly 5,000 ‘sitting days’ in court each year, boosting the capacity of judges to deal with the more complex cases.

The statistics speak for themselves!

One of the most effective ways to show couples the benefits of mediation, is during the Mediation Information & Assessment Meeting (MIAM), however, it is imperative that both parties attend, and the government needs to place considerable emphasis on ensuring that this happens before the matter reaches the Courts.

The legislation needs to ensure that only members of the FMC (Family Mediation Council) can deliver mediation. Due to the high-quality standards that members must adhere to this will ensure that clients receive the best level of service.    

We need a proper funding mechanism to ensure everyone can access mediation when they need it. The extension of the Government voucher is welcomed, but if MIAMs are made compulsory then funding would need to be made available for the portion of people that fall just outside the Legal Aid (LA) requirement.

Child Inclusive Mediation (CIM) should also be available via the voucher and LA. The difference between the two is that LA can be used again, if required, whilst the voucher can only be used once for the lifetime of the scheme.  

What the outcome of the proposed plans will look like in due course is yet to be determined, but what we do know is that this is a real opportunity to better protect families from the damage of a courtroom battle, and it’s essential that we move quickly to ensure that happens.