News focus: Compulsory mediation is no panacea

The government’s commitment to seeing more family disputes resolved out of court has been widely welcomed. But, as MPs heard this week, many practitioners are unimpressed by the reform plans that have emerged so far.

For the past few weeks, the government has consulted on making mediation compulsory for ‘low level’ family disputes.

‘The suggestion that mandatory mediation is the answer doesn’t sit well with us,’ solicitor Jo Edwards, chair of Resolution’s family law reform group, told the Commons justice select committee. Moreover, without funding for early legal advice, the government’s proposals are unlikely to succeed.

As the Law Society explained in its consultation response, advice provides a ‘reality check’, manages unrealistic expectations and assesses a client’s suitability for mediation. It helps reduce conflict early on and gives clients a better understanding of the parameters of their case. Early legal advice would also enable practitioners to properly assess cases for elements of domestic abuse and ensure adequate protection for those who need it.

Practitioners also question why the government has focused solely on mediation when other forms of dispute resolution are available, such as collaborative law, early neutral evaluation and arbitration. ‘There is a need for a semantic shift to the most suitable alternatives in the pre-court space, rather than forcing people down one route,’ Resolution said in its consultation response.

'The suggestion that mandatory mediation is the answer doesn’t sit well with us' 

Jo Edwards, Resolution

Holding parties accountable for failing to make ‘reasonable attempts’ to mediate is problematic. What would ‘reasonable’ look like, solicitor and mediator Caroline Bowden asked. ‘Mediators must do nothing other than say “These people attended on such and such date. Party A on this date, Party B on that date”,’ she told the committee.

‘I had a case in court last year. We were in the court space already, hadn’t attempted mediation,’ Edwards recalled. ‘The judge appropriately – there was judicial continuity – said to this couple repeatedly, “You should try mediation”. So, a few months down the line, they agreed to do it.

‘Now, in completely good faith, it transpired the judge and the prospective mediator spoke to each other. I think it was because the mediator wanted to get an understanding about what the issues were, what was keeping them apart. The minute that my client found out about that, they were very concerned about the neutrality of the mediator, didn’t want anything to do with mediation, and [were] really concerned about the impartiality of the judge, to an extent we had to ask that judge to recuse themselves from the case – which that judge did.’

If the government wants more families to engage with non-court dispute resolution, education is key, the Family Law Bar Association’s Susan Grocott KC told the committee.

GP surgeries, and crisis and debt agencies could have leaflets on separation and next steps.

‘It’s a message that people see in everyday life. The more they see it, the more it will begin to register,’ Grocott said. ‘They may not be even contemplating separation, but they might know someone who [is]. They can pass on that information… So it begins as a conversation that happens everywhere. Then, of course, any government website that is leafleted at the bottom can provide the more detailed information that’s needed. It doesn’t need to amount to a great deal, but it’s about publicising why it’s a good idea, the harm to children, and where you can get help and support.’

The association suggests the current mediation and information assessment meeting become a ‘non-court processes and choices’ or ‘choices, processes and outcome’ meeting. Provided there are no legal or welfare issues, parents are steered away from court.

‘I say to parents, “Do you really want me to decide Christmas?” You know this child better than I do. But they come to me for an arbitrary decision,’ Grocott said. ‘I might say, “Well Christmas Day should always be with one parent, Boxing Day with another”. Splitting Christmas Day doesn’t work because you then get a child who is all spent by 3pm. Those are commonsense things, they’re nothing to do with the law or family court process.

‘It’s about having the information about what the responsibility is on a parent and then putting that into practice. Then anything you are able to do by way of directing because it may well be that mediation is not the best way to go forward, there are other non-court dispute resolution solutions.’

The government has only just begun sifting through the consultation responses. But the message is plain: compulsory mediation is not the answer.