It’s time to consider making family mediation compulsory if lawmakers are serious about reducing the family court backlog, says England and Wales’ leading provider of family mediation.
Jane Robey, CEO of National Family Mediation, says that with the introduction of vouchers to help separated parents pay for mediation, government Ministers have started the queue-reduction ball rolling.
“Professionals must consider how to accelerate it,” she says, outlining how the issue of compulsory mediation has been an ‘on-off’ discussion for many years.
“It’s never got beyond first base in a meaningful way. It’s high time to revisit the idea,” she writes, in a new article for Family Law.
Jane Robey described a 2005 Oxford University global review of services, practices and interventions surrounding child contact after parental separation or divorce, which included a focus on mandatory mediation.
“A comparison of evidence from home and abroad found that client satisfaction of their mediation experience when mandated was equal to – and often higher than – agreements reached in voluntary mediation,” she writes.
“The voucher scheme might just be a flash-in-the-pan, but it does provide an opportunity for referrers to mediation, especially the judiciary, to provide some short-term relief to the relentless backlogs.
“To those who say ‘compulsory mediation will never happen’ I suggest reflecting that ten years ago nobody expected the MIAM to become compulsory. It did. And yet that legislation is clearly not enough. The courts are more clogged than ever.
“The MIAM has been compulsory for those wishing to make an application to court since 2014. Yet too many clients currently self-exempt themselves without ever attending the MIAM, and there are no proper and consistent checks on this.
“A MIAM held with only one party is never going to provide a separating couple with information to make an informed decision about whether or not mediation might work for them.
“Those who oppose compulsory family mediation continue to say it is a voluntary process, and that this is one of its strengths. It certainly provides reassurance to participants that they can withdraw at any time and the decisions reached are owned by them and not the mediator. However, when families reflect after a successful mediation, and the money, parenting and property agreements they’ve managed to reach, the fact that it was voluntary is never mentioned in their positive feedback.
“I believe you can compel people to mediate and do it “in good faith.” You cannot compel people to reach agreement. What you can do is provide the forum for a comprehensive discussion about the areas of disagreement and that mere act is often enough to narrow the chasm between them, she adds.”
She concludes: “Making attendance at mediation compulsory would encourage more people to exercise their own authority over their situation whilst still retaining control of the decisions that ultimately need to be made. Family mediation professionals should now join the debate about compulsory measures for resolving conflicts.”