Following the consultation on resolving family law disputes at an earlier stage (that ended in March 2023), the Ministry of Justice published their response today, to coincide with the final day of Family Mediation Week 2024. This annual celebration of using mediation in family law disputes usually takes place in January each year (one of the most infamous months of the year for family bust ups). Family Mediation Week seeks to remind family law practitioners of the benefits of mediation and to call for reform from policy makers; all with a view to promoting amicable solutions to otherwise contentious family issues.
The consultation was focussed on how the Government can implement a framework to help families resolve disputes through mediation, instead of going to court. Family law practitioners and mediators made up over 50% of the responses to the consultation with other contributions from the support sector and academics. There was widespread support for the key aim of the consultation, which was to help more people settle their private family law disputes earlier and away from the court, where it is safe to do so. The report considered not only mediation, but other mechanisms that the Government can support to avoid lengthy, acrimonious and costly court proceedings.
Our 5 key take-aways from the report are:
1. Mandated mediation?
A number of family law practitioners have been waiting for the Government’s response through bated breath, as many believed it could be their introduction of mandated mediation (with exceptions for circumstances involving domestic abuse), prior to court proceedings. The report discusses the respondent’s views on this, who noted that the Government’s proposed exceptions did not go far enough and feared they could leave the door open for survivors of domestic abuse to attend a mediation with their aggressor. As such, the Government confirmed that they “are not proposing to change the law to introduce a requirement on parties to attend mediation before applying to court at this time” (emphasis added). Instead, the report expressed that information on alternative dispute resolution methods at an early stage, and implementing reforms in the private family law space, would help make disputes less acrimonious. The use of “at this time” suggests that this is not the last we will hear of mandated mediation; we will continue to watch this space. In terms of the current scope of mediation, the report advocated for more child-inclusive mediation and confirmed the Government would continue to support the mediation voucher scheme.
2. New pilot scheme for publicly funded legal advice
The report acknowledged that mediation will not be suitable for every family or every dispute. For those parties who pursue court proceedings, the report noted that funded legal advice at the start of their proceedings could help parties make better informed decisions about their dispute. The Government is therefore commencing a pilot scheme that provides publicly funded legal advice at an early stage in the dispute. This pilot should start in summer 2024 and will inform the Government’s policy on legal funding for private law family cases going forwards.
3. Improving information and guidance for families
The Government addressed the need for families to have more information about mediation both before and during a dispute. There is a widespread belief that you have to go to court to get divorced, but practitioners know there are many other routes to resolving family matters. The Government have suggested ways of signposting and guiding those at the early stages of the disputed to encourage amicable outcomes. The response from the Government suggested a new online tool for parents to provide “clear, reliable and accessible information” to separating families. Building on their research from the consultation, the Government are producing prototypes for a “guided pathway” that will help people find the most appropriate mechanism to resolve their dispute. Not only will there be more support online, but there will be information provided to the parties at the time of a court application – so they know there are other ways of solving their dispute.
4. Promoting parenting programmes
The report considered the benefits of parenting programmes and whether they should be mandated for all parents going through child arrangement proceedings. The report comments that although the Government want more people to benefit from these programmes, they want to give parents the right to choose how they will reach an agreement on their child arrangements. The report noted research undertaken by Cafcass Cymru found that 93% of participants found a parenting programme useful. So, the Government is instead looking to promote these programmes, instead of mandating them. To improve the uptake, they are looking to work with Cafcass so parents voluntarily undertake these parenting programmes, rather than having them always be court ordered. This will be with a view to eventually making pre-court parenting programmes the norm. These programmes can be found through local authorities via such initiatives as Family Information Services, Families First and among others.
5. Pathfinder Courts pilot expanding
The Government’s report looks to address the adversarial nature of court disputes. The Ministry of Justice is currently piloting a more investigative and less adversarial approach to private law proceedings relating to children in Dorset and North Wales. These are known as Pathfinder Courts that seek to identify needs and work with adults and children to find an agreement. After an order is made, a review takes place to see how well it is being implemented and if it is adequately protecting the children’s welfare. The pilot has so far been proceeding positively for participants. It has improved access to support services for local domestic abuse agencies as people are being referred earlier when these agencies can help most effectively. The Ministry of Justice will soon extend this policy to South East Wales and Birmingham.
The report demonstrates that the Government are seeking to change the way people think about divorce, separation, and family disputes at an earlier stage – before court proceedings are even contemplated. This will help not only the people who are able to use mediation to resolve their dispute faster and with less acrimony, but also the court system serve those who need it the most. The report is a hopeful end to what has been an informative and thought-provoking Family Mediation Week.
If you would like to find out more about mediation, you can go to the Family Mediation Council’s website, or contact our Family Team who would be glad to assist.