In our August post, family law blogger John Bolch takes a look at mediation, the government’s call for evidence from interested parties and whether mediation will become more mainstream.
It has long been thought that the courtroom is not the most appropriate place to resolve family disputes, particularly those relating to arrangements for children.
Of course, there are ways of resolving family disputes out of court, in particular by the use of mediation, whereby a trained mediator will help the parties to settle the dispute by agreement. However, only a small proportion of family cases go to mediation.
But all that may be about to change.
Mediation on the periphery
Mediation began to be used as a way of resolving family disputes about thirty years ago. Since then, there have been efforts to increase its use, but it has never become part of the ‘mainstream’ of the family justice system, remaining somewhere on the periphery.
There have, however, been some developments over the following years.
For example, the possible benefits of mediation were recognised by the Government in 2014 when it introduced a requirement that anyone wishing to make an application in, or to initiate, family proceedings, had to attend a Mediation Information and Assessment Meeting (‘MIAM’), before making the application.
But a MIAM just assesses whether the case is suitable for mediation, and if it is, the mediation usually takes place away from the court system. And in any event a review found that the MIAM procedure is not being followed in many family courts.
There was a further development last year when a group of mediators, lawyers and others set up by High Court judge Sir Stephen Cobb investigated and reported upon better ways to achieve good co-parenting between separated parents.
One of the recommendations of the group was that more should be done to promote mediation as a way to resolve children disputes between parents. This included training for judges on the benefits to children of their parents resolving issues together, enforcement of the MIAM rules by judges and court staff, and proper case-management by all family judges, in compliance with their duty to consider out of court options.
Mediation into the mainstream?
The latest initiative to increase the use of mediation as a means of resolving family disputes comes once again from the Government.
Concerned by both the strain upon the courts of its huge caseload and the cost of the courts system to the taxpayer, the Government last week launched a ‘call for evidence’, seeking views from interested parties (including judges, lawyers, mediators and court users) on the best ways to settle family and other civil disputes away from the court room.
The Government says that responses to the call for evidence “will shape future reforms to civil, family and administrative justice, with Ministers determined to help more people resolve their issues without the stress and cost of a court case.”
Exactly what this will mean remains to be seen, but the Government also says that its “ambition is to mainstream non-adversarial dispute resolution mechanisms, so that resolving disagreements, proactively and constructively, becomes the norm”. Further, it says that it wants to give people “a fuller, more integrated, range of routes to get the best outcomes for their issue.”
The call for evidence will also examine whether new technologies, such as online mediation, could provide “smarter and less adversarial routes for finding resolutions.”
Benefits of mediation
In a press release regarding the call for evidence the Ministry of Justice illustrate the benefits of mediation by reference to a case concerning a separated couple who could not agree on child arrangements.
The father in the case had not seen his nine-year-old daughter for three months, despite previously having regular contact. We are told that insisting on taking the case to court, the mother and father were persuaded to have a mediation session before going to a judge. This support helped the couple to reach an agreement, setting the conditions for the father to see his daughter again.
Beverley Sayers, director of the Family Mediation Council, which maintains a professional register of family mediators, commented on the case:
“Mediation can help people who seem poles apart reach agreement. This case illustrates how helping parents focus on their child’s needs enabled them to reach an immediate agreement with positive outcomes for all parties involved.
“Going to court would have taken much longer, likely resulting in considerable more anguish for the child and parents, who would have had no control over the outcome.”
The call for evidence runs until 30 September, after which the Government will publish its findings.