Changes are afoot in the world of family law. As well as reforms to surrogacy laws and a pilot scheme allowing journalists to report on family law cases, the government has made proposals to overhaul mediation – and in some cases to make it mandatory.

Under the new proposals, separating couples in England and Wales would be required to settle their disputes through mediation. This would apply to couples who are married or in a civil partnership.

But before we go any further, it's important to say that this wouldn't be an all-encompassing measure. It would apply only to "low-level" court cases. In practice, this would exclude cases which involve a history or allegations of domestic violence.

The Ministry of Justice says these measures would serve two purposes. First, they would protect children from the stresses of a court case involving their family. And secondly, they would help to free up the backlog of cases that's been exacerbated by the pandemic.

It claims that 19,000 active cases could be resolved through compulsory mediation. This would then mean that 36,000 vulnerable families would be able to access court more quickly. The vision is of fast dispute resolution all around.

What is mediation?

Mediation is a confidential process where an independent, impartial mediator attempts to lead couples to negotiate and reach a solution. Typically, the dispute will involve child custody and how finances are split.

A mediator isn't a judge and they don't deliver a verdict – nor do they offer legal advice. They're more like a trained facilitator.

Mediation is already available, but not mandatory. Many couples choose to go straight to court – so these new measures, if introduced, would be a significant change to the laws surrounding separation.

What is the argument for mediation?

It's argued that mediation is cheaper and faster than court proceedings and has a higher success rate. According to one figure, 86% of all cases are settled – and 75% to 80% are settled on the day.

Mediation fees are cheaper than legal fees. In the business world, it's been estimated that commercial mediation saves businesses somewhere in the region of three billion pounds a year.

Civil litigation tends to be costly, time-consuming and stressful. Mediation can help to sidestep this problem and avoids labelling one party as the winner and the other as the loser.

Finally, the Ministry of Justice argues that compulsory mediation would take some of the strain off the court system, freeing up time and resources for "high-level" cases.

What would happen if couples refused?

If couples refused to take part in mediation, the judge could order them to do so. If they still refused, they could be fined.

It seems that this would happen only if the couple's refusal was deemed to be detrimental to a child's well-being – but this isn't entirely clear yet. 

What does the government say are the advantages?

The proposals were brought in under then Justice Secretary Dominic Raab. He said:

"When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children's school work, mental health and quality of life.

"Our plans will divert thousands of time-consuming family disputes away from the courts – to protect children and ensure the most urgent cases involving domestic abuse survivors are heard by a court as quickly as possible."

What schemes does the government currently have in place?

The government has already introduced a family mediation voucher scheme which will run until April 2025. Each voucher gives separating couples £500 towards mediation costs. The Ministry of Justice claims that this has supported more than 15,000 families so far.

What could be the disadvantages of the scheme?

The Law Society – which represents solicitors in England and Wales – has warned that "the plan could put victims of undetected coercive control in a vulnerable position".

"Relationships where there is manipulation or coercive control," says Richard Miller, "can be very difficult to spot initially, and those on the receiving end of that sort of abuse might not even understand the extent to which they are being controlled."

Women's Aid has backed this up, arguing that the plans will need to safeguard women experiencing domestic abuse. Mediators would need to be aware of "unequal power dynamics".

Mediator David Bilbe pointed out some downsides in his article for Lawyer Monthly. He notes that in Canada – where mediation is mandatory – "the quality of settlement […] was found to be lacking, particularly where a power imbalance was evident".

He contrasts this with a trial, which has "all of the safeguards of formality, advocacy and witness statements". In mediation, too much responsibility could be said to rest on the mediator's competency.

He also points out that mediation is confidential whereas court proceedings usually aren't. "If mediation becomes a sequential part of the route to litigation," he says, "then matters of confidentiality and prejudice-free discussion must be addressed."

Can you see a solicitor before mediation?

Yes – legal advice is available before mediation.

It used to be the case that legal aid was available for private family cases – but this was cut under the coalition government in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The new justice secretary Alex Chalk was in favour of restoring legal aid, although it's unclear whether he'll remain committed to it now he's in office.

If legal aid was restored, it would mean that more separating couples could see a solicitor before mediation.

What happens next?

At the time of writing, the government are undertaking a 12-week consultation on the plans, which will end in June 2023.

How we can help

At Milners Law, we have a team of family solicitors and experienced mediators. If you're looking for legal advice prior to mediation, we can help.

Mediation can be a good option as it's faster, cheaper and less stressful than court proceedings.

Interested? Please get in touch today for a free, no-obligation consultation.