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Mediation is an alternative means of settling disputes. It’s used in many different areas of law but the family law sector is of particular interest to me. New plans have been announced that mean family court cases that are considered 'low level' in England and Wales will have to undergo mandatory mediation, instead of settling their dispute in court.

This is the subject of a consultation that began on 23 March 2023 and will run for 12 weeks. Mandatory mediation isn’t proposed for cases involving domestic abuse, as they’re explicitly excluded from the proposals.

First, it’s important to explain what mediation is. It’s a confidential process whereby parties get an independent mediator who tries to make each party settle on terms that are desirable to both of them. The parties have more of a say in these negotiations than in the court route, as there’s no judge determining the final outcome.

There are advantages to this proposal. There’s an evident backlog in court cases at the forefront of everyone’s minds and using fewer court resources will hopefully reduce that backlog. There’s also the benefit of cost for the parties; mediation is a much cheaper option than litigation completed through court.

It also could preserve relationships between parties, for example, if they’re going through a divorce then they might be able to leave the process on amicable terms, rather than undergoing a court process that’s stressful and can leave great animosity between the two parties involved.

Learn more about dispute resolution in this LCN Blog post.

But why are there so many concerns about this mandatory mediation proposal?

If the couple that’s undergoing a divorce or fighting about child custody aren’t on favourable terms, then mediation will be no good. If the two can’t even be in the same room as each other, then asking them to come up with divorce or child custody terms that are favourable to both is probably not going to be successful.

Another reason that mandatory mediation may not be the most favourable step forward for the legal sector, is that it may stilt the development of common law. There will be fewer court cases and fewer binding decisions on other parties that are undergoing similar procedures. This means that the family sector may not develop in line with current societal opinions and circumstances, and arguably won’t be promoting justice in the modern world.

Finally, mediation is currently voluntary and there’s an element of this being something that the parties want to embark upon. If it’s made mandatory, then parties may see it as something to tick off their list of things to do. They may not be using it constructively and with the aim of coming to a fair agreement. If this is the case, the whole reasoning behind mediation is ignored and, quite honestly, there would be little point in the process.

To learn more about family/matrimonial law make sure to read this Practice Area Profile sponsored by Charles Russell Speechleys LLP.