Government Family Mediation U-Turn

It was announced by MOJ on the 26th of January 2024 that the government had abandoned plans, which have been heavily criticised by family lawyers, to make mediation compulsory for separating parents in England and Wales.

Whilst the government’s plan to make mediation mandatory is born from good intentions to assist families before matters reach family court, the plans failed to adequately take into account the impact that attending compulsory mediation would have had – particularly on victims of domestic abuse.

The Ministry of Justice said on Friday that the law would not be changed to make mediation mandatory, and “measures would instead be introduced to better protect children from lengthy legal disputes, which include early legal advice being offered to separated families, improving training for mediators and extension of a pilot that offers more support to the abuse victims and their children who do face proceedings in court”.

Last week, Baroness Carr, The Lady Chief Justice, told the House of Commons Justice Select Committee that the “pathfinder courts”, which have been piloted since March 2022 and are due to be rolled out in Birmingham and Cardiff in Spring 2024, would see the private law experience front loaded by involving the Children and Family Court Advisory and Support Service (Cafcass) from the beginning of a case.

From April, family judges will also have greater scope to pause proceedings if mediation has not been taken seriously by either party.

Mediation undoubtedly has its benefits in the right circumstances and is one of the dispute resolution avenues which should never be discounted. However, on a case-by-case basis v’s one size fits all, the Government have agreed it would not be right to mandate that avenue of dispute resolution. Early legal advice will also undoubtedly have its place and be of significant benefit to clients, and the importance of securing early legal advice is so that each individual can determine the correct path to resolve any dispute.

There will be proceedings that, due to any dispute as to facts, may require court proceedings and access to early legal advice will, in the right cases and circumstances, lead to a dispute being resolved sooner or without the need to go to court.

If you are parents and you are separating, in an attempt to reduce acrimony and reduce spending on legal fees, you will be encouraged to seek independent legal advice to ascertain whether mediation is appropriate in the first instance. Separating parents will be supported based on their circumstances to understand what they can realistically expect to achieve in terms of arrangements for their children post separation.

The government taking on board the concerns of family lawyers and domestic abuse charities, and agreeing that to mandate mediation would not be the right course of action, is a step in the right direction. A one size fits all approach would undoubtedly fail in the family law arena.

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