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Mandatory mediation debate to resurface amidst government dispute resolution consultation

Date:21 OCT 2021
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Chief Executive, NFM

In March the government launched what was then widely publicised as a ‘temporary’ voucher scheme designed to improve the take-up of family mediation for separating families with children. An initial £1 million was made available to cover costs of up to £500.

Around 2000 families were set to benefit with early analysis of the data captured indicating that a high percentage rate of successfully mediated agreements in cases where a voucher was used.

The scheme has since been extended.

While not without its shortcomings – namely that the funding does not cover the initial mediation information and assessment meeting (MIAM), or for work necessary to draft documentation – overall, the initiative has been very well received.

Indeed, there are even signs that that many participants no longer felt the need to take their dispute to court; helping to alleviate the post-LASPO Act logjams which have been further aggravated by the pandemic, as well as no doubt driving down the financial and emotional burden of separation and divorce for those involved.

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While the official data is still being digested and analysed the initial findings perhaps shed some light on why the topic of mandatory mediation has surfaced once again, and why the government has launched a dispute resolution consultation which will focus on the role of pre-action protocols available.

Coincidentally, said consultation happens to coincide with the 25th anniversary of Lord Woolf’s seminal report on Access to Justice, and no doubt the success of the voucher scheme will feature in the evidence submitted by many an ‘interested party’.

By the government’s own admission, the provision of dispute resolution schemes remains patchy. While the extension of the voucher scheme is a welcome step in the right direction, it is universally accepted that more needs to be done to increase uptake of less adversarial options.

As is evidenced with the public support for the introduction of no-fault divorce, people are crying out for legislative change that helps bring about more peaceful and sustainable resolution – especially where children are involved.

And the benefits of mediation are not exclusive to family related matters. As the Ministry of Justice starts its roundtable discussions as part of the dispute resolution consultation  representatives from civil, commercial and neighbourhood settings spoke authoritatively and eloquently about its effectiveness.

Sadly, however, we all also shared the same experiences when it came to the barriers and obstacles that prevent people from engaging with mediation.

Primarily, there is a lack of understanding about what it is, and clients don’t want to pay for a service they know little about. In some cases, people simply did not believe it would work for them, and in other cases the opportunity to engage had reached them too late believing their case to be too far immersed in court proceedings.

As mediators we all know and agree it’s never too late and there is everything to be gained from trying to resolve conflicts.

There are, however, some relative ‘quick fixes’ here that would swiftly move things in the right direction.

Firstly, better policing of the MIAM by the courts who have a real opportunity to be the agents for change on this matter.

If the courts start to challenge peoples’ engagement with the MIAM it would have an immediate and no doubt very effective impact on both the attitude that people have towards the process, as well as the delays and backlogs.  

We need to shift the public perception of mediation from that of ‘inconvenience’, to that of ‘opportunity’. Especially in cases where children are involved.  

Secondly, utilising the data captured by the Ministry of Justice as part of the voucher scheme to demonstrate the true value of mediation, as well as a sustained marketing campaign that showcases the merits of family mediation and that captures the attention of those undergoing a family crisis at that moment in time. 

Ultimately, we should consider making attendance at mediation compulsory and remove the barriers and obstacles that are already known, especially costs.

While I have debated the pros and cons of this approach with my industry colleagues over the years, the evidence supports the position that mediation can resolve certain issues, and that it brings people closer together on the matters that remain in dispute.

As such, the time taken in court to settle those outstanding issues is also much reduced. That is a significant saving to the parties concerned, the court, and the taxpayer, all of whom are paying a high price for the conflicts that spiral out of control caused by an adversarial system.

The government has recently reshuffled, and a new minister may have different priorities for family justice. What is clear and well understood is the logjam and delay in the court system isn’t going to disappear because of this reshuffle and we can but hope that the momentum gained through this family mediation voucher scheme and the ongoing consultation is not put on the shelf next to the now 25year old Woolf reforms to gather more dust.