Should mediation be mandatory?
Separating parents in England and Wales could face fines for refusing to try mediation under new proposals. The government is set to make sessions mandatory and offer funding support in an effort to divert cases away from under-pressure family courts. A consultation has been launched on the proposed policy which will apply to parties who separate and have children together but the government is also looking more broadly at compulsory mediation for those without children and how that could be funded. This 12-week consultation on the plans began on Thursday 23 March and will close on 15 June.
Mediation is a service whereby couples can agree the practicalities of a split in the presence of an independent specialist. Mediation is designed to keep the lines of communication open between the separating parties so they can try to agree mutually acceptable terms of settlement, whether that is financial or arrangements for their children. Whilst this is an option many parties take to try and resolve matters, currently it is a completely voluntary process.
Under the proposed plans, judges would have the power to order separating couples to make a “reasonable attempt” to agree matters such as child arrangements and financial separation in mediation. Any party who fails to do so could face fines “if they act unreasonably and harm a child’s wellbeing by prolonging court proceedings”. The proposed new rules, which would apply to couples with children who are married or in civil partnerships, will exclude relationships where there has been domestic abuse.
However, Richard Miller head of justice at The Law Society has voiced concerns over the proposed policy saying “Relationships where there is manipulation or coercive control 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 themselves.”
Women’s Aid has also said clarity is “urgently needed” to understand how the Ministry of Justice will ensure all domestic abuse survivors will be kept safe and allegations will be properly investigated. The charity’s head of policy, Lucy Hadley, said survivors “frequently fear they will be accused of parental alienation” if they raise domestic abuse.
“This lack of disclosure means the proposed exclusion of domestic abuse cases from mediation will not always work, and we fear that women will be re-traumatised by mediation with their perpetrators. If mediators don’t have a thorough understanding of domestic abuse – or even know abuse is a factor in a case – these processes will ignore unequal power dynamics, exacerbating the abuse women experience and putting them at further risk.”
If you have any questions about using mediation, or any other family law enquiries, please contact us.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Ipswich.