Government mediation promotion strategy gathers pace
Feb 3, 2022
In his latest post, family law blogger John Bolch looks at mediation, the current landscape and whether new incentives will reduce the cost of the courts to the taxpayer.
This writer has been in family law long enough to remember a time when the term ‘alternative dispute resolution’ had not yet been coined. The only alternative to resolving your family dispute in court was to thrash matters out between solicitors.
Still, that worked reasonably well, thanks to the availability of legal aid to all who could not afford a lawyer, meaning that no one was left out of, or disadvantaged in, the dispute resolution process.
Alternative dispute resolution first came to the fore in the field of family law in the 1990s, in particular with the advent of mediation.
Mediation, for the benefit of those who don’t know, is a process whereby the parties to a dispute have one or more meetings with a trained mediator, who will try to help them resolve the dispute by agreement. The mediator will charge a fee for this service, which is usually shared between the parties.
The process of mediation is entirely voluntary, and thus mediation will only take place if both parties agree.
It is important to understand that the mediator will not provide legal advice to the parties, who can seek their own advice during the mediation process, and before entering into any agreement.
Mediation can be used to resolve any type of family law dispute, in particular disputes over arrangements for children and over finances on divorce.
But mediation initially suffered from slow take-up. I remember back in the 90s signing up to train as a mediator, only to have second thoughts when it became clear that the likely returns did not justify the expense of training.
All this was supposed to change when legal aid was abolished for most private law family matters in 2013. Or at least that was the government’s idea. They saw mediation as the great replacement for legal aid. But they were sadly disappointed.
They tried to encourage the use of mediation in the following year by requiring anyone wishing to make an application to the Family Court to first attend a Mediation Information & Assessment Meeting, or ‘MIAM’. The purpose of a MIAM is to provide the parties with information about mediation, and to assess whether the case is suitable for mediation. However, even if the case is considered suitable, there is no compulsion to go to mediation, which will only take place if both parties agree.
But mediation take-up remains low, and is actually around half of what it was before the abolition of legal aid (the government had not factored in that many of the solicitors that parties consulted with the benefit of legal aid were actually advising their clients to try mediation).
But the government has not given up, and there have recently been two government initiatives aimed at improving mediation take-up.
As mentioned above, there is a fee for mediation, and obviously that could deter some couples.
Accordingly, in March last year the government launched a scheme providing separating couples with a £500 voucher for mediation services in connection with disputes in relation to children. Initially the scheme had a funding limit of £1 million, but the government invested an extra £800 in the scheme in August.
The scheme has reportedly been very successful, with research indicating that of the first 2,000 cases using the vouchers, more than three-quarters (77%) reached either a whole or partial agreement outside of court. Nearly half (49%) said they would not have considered mediation if the voucher had not been on offer.
Buoyed by this success, the government announced in January that it was putting a further £1.3 million into the scheme, bringing the total to over £3 million. The extra money, say the government, will allow the initiative to run until the end of March.
But the government may go further.
Last November the Lord Chancellor Dominic Raab told the House of Commons Justice Committee that he wants to do more to reduce the number of family disputes going to court, revealing that talks had begun with the senior judiciary about offering greater incentives to couples to settle disputes through alternative means such as mediation.
Mr Raab did not indicate what these incentives might be, but there is speculation that they may include penalising parties who refuse to go to mediation without good cause, by the court ordering them to pay all or part of the other party’s legal costs in relation to any future court proceedings.
There is also some talk of making mediation compulsory, although that is something of a contradiction in terms. And in any event, you may be able to force someone to mediate, but you obviously can’t then force them to agree anything.
Whatever, it is clear that the government still sees mediation as its great hope to reduce the cost of the courts to the taxpayer, and simultaneously reduce the workload of the courts. Whether this hope will finally be realised, only time will tell.