Mandatory Mediation: The Good, the Bad, and the Struggling
By Leah Caldwell
Bio: Leah is a director of Mediation First and an FMC accredited family mediator with over 10 years’ experience. She is also Treasurer of the Family Mediators Association (FMA) and Chair of FMA’s Complaints Committee and Legal Aid Committee. Leah also trains other mediators to become Child Inclusive Mediators.
In a landscape marked by evolving paradigms in family law, the topic of mandatory mediation has garnered substantial attention. This blog, authored by Leah Caldwell, provides an examination of the nuances surrounding mandatory mediation. As the director of Mediation First and an FMC accredited family mediator, Leah brings a pragmatic perspective to the discourse, rooted in extensive experience and a commitment to enhancing family dispute resolution.
Government Consultation: Supporting earlier resolution of private family law arrangements
Early this year, the Ministry of Justice put forward wide-ranging options to reform the family justice sector in its consultation entitled ‘supporting earlier resolution of private family law arrangements’. The government consultation, which closed on 15 June 2023, invited views on, amongst other topics, the use of shared parenting programmes, costs orders in private law children cases and mandatory mediation.
The options put forward suggest that the Government is willing to not only invest in promoting positive co-parenting, but also considering more creative (or interventional) approaches such as penalizing people (via costs orders) and/or mandating the use of mediation before an application can be made to court.
The ethos behind the Government’s proposals is largely uncontentious. Namely, a commitment to “focus on earlier support for families before conflict between them becomes entrenched”, and allowing court resources to be reserved for the “families and children who are most in need of the court’s involvement and protection”.
Amongst the statistics contained in the consultation was the fact that the average length of time for private law children cases has risen from 26.1 weeks in 2015 to 45 weeks in September 2022. It is further recognised in the consultation that this increase creates prolonged uncertainty for both adults and children and is therefore potentially harmful for families.
Government’s support of family mediation as a process that is quicker, cheaper , and more constructive is very welcome. Alongside this, the consultation recognises that mediation works “with an impressive 69 percent success rate, the [Family Mediation Voucher] Scheme has made it possible for over 13,500 families to enlist the help of mediators and reach full or partial agreements, without the need to go through a potentially long and adversarial court process”.
As detailed above, the Government’s intent behind the proposed introduction of mandatory mediation is all good – i.e., direct people into a process that is faster and better for all concerned and has a good chance of success. So, what’s not to like?
Well, to start with, one of the core principles of family mediation is that it is a voluntary process. This is not just something that we, as mediators, pay lip service to but something that we hold close to our hearts. I want to be working with families that want to be attending family mediation. Don’t get me wrong, not everyone I met with wants to meet with me, but most recognise the value of trying to have constructive conversations as a starting point to settling a dispute.
This, for me, is a platform that I can rely upon within the mediation process; if you’ve mediated with me, it’s not uncommon for me to reinforce that message by stating, “neither of you have to be here, you have chosen to be here – hopefully, that’s because you both recognise that there are significant benefits to you being able to sort this out together!”. I’m not sure that the message, ‘both of you have to be here before you can make an application to Court’ has the same ring to it!
The other potential difficulty with the proposals made in the consultation is the suggestion that mediators will need to provide a certificate to court confirming that people have made a ‘reasonable attempt at mediation’. Again, this sits against a core principle of mediation – namely, the impartiality of the mediator. This is another principle that is fundamental to how we operate as mediators – without this, how we do engender trust?
Quite often (and again, if you are a client of mine, you may recognise this statement), I will say, “I am not here to judge you in any way”. The new version under mandatory mediation, ‘I am not here to judge you in any way except to keep note of whether I think you’re engaging in a reasonable attempt at mediation (which is completely subjective and open to interpretation)’, is not a statement I really want to be making as a mediator!
A further consequence of introducing mandatory mediation is that it is likely that more people will be accessing our services. Whilst this is positive (and the indication is that the profession does have capacity to respond to this increased demand), an unintended consequence could well be that less and less services will offer legal aid for family mediation. To be clear, this is because the rates we get paid for legal aid work have remained static for over twenty years (i.e., absolutely no increase for two decades!). It is therefore becoming increasingly unviable to provide legal aid. Unlike other large providers, Mediation First has continued to provide legal aid for family mediation because we are committed to helping everyone in society to find more constructive ways to resolve disputes.
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