Mediation: a constructive solution

A Family Solutions Group report in November last year found the family justice system in crisis, with parents making an “unmanageable” number of applications; and courts – already suffering from significant backlogs as a result of the pandemic – “stretched beyond limits”. 

Commenting on the report, Sir Andrew MacFarlane said: “Where there are no issues of domestic abuse or child protection, parents ought to be able, or encouraged, to make arrangements for their own child”.

The government has launched a £1m mediation scheme to try and address this; couples can receive up to £500 towards the costs of family mediation.

To qualify, mediation must relate to a dispute regarding a child, although it can be used to mediate financial matters in certain circumstances.

The aim is to divert cases away from the courts by helping couples reach agreement outside of the court process.

What is family mediation?

Family mediation is a constructive way of resolving disputes arising from relationship breakdown without going to court. It provides a safe, private place for frank and open discussion, so separating couples can discuss options and agree future arrangements.

Mediators are neutral and impartial. A mediator usually meets both individuals together and will first help to identify the issues to be resolved. They will then facilitate discussion around options, so solutions can be found.

The aim is to find an acceptable outcome that works for parents and children.

Faster, more cost-effective?

As the family courts (rightly) prioritise urgent cases, there can be a long wait for those who have applied to court to resolve child arrangements or financial matters. 

In contrast, couples can begin mediation straight away, so issues that need to be resolved quickly, for example immediate living arrangements, can be addressed without delay.

An overall solution can often be found far quicker than it takes to be listed for a court hearing.

Even where couples are unable to resolve all differences, issues are typically greatly reduced, which significantly reduces the cost and stress of any future litigation. It also helps parties understand each other’s position better and in a safe space, which helps reduce conflict.

However, from the outset mediation still comes at a financial cost. Although it can help lessen the financial burden in the longer term, the initial costs involved may discourage some.

For these reasons, the government scheme is to be welcomed. However, couples must still take independent legal advice, particularly regarding financial matters.

Both need an understanding of the range of potential outcomes the court may order, to facilitate effective discussions in mediation and so they can make informed decisions.

It is also important to understand that proposals agreed in mediation are not instantly legally binding. At the end of the process, both the parties will need to obtain legal advice regarding the proposals; and for any financial arrangements, how these may be converted into a court order.

Ultimately, couples considering mediation need to be aware mediation is far from a silver bullet and may not be right in their circumstances.

Many couples prefer a third party to make the decisions and provide them with an answer; however, this is not the role of a mediator and it is important couples are aware of this.

Furthermore, some complex or highly contentious cases, such as those which involve allegations of abuse and coercive control, may not be appropriate for mediation.  

No-fault divorce

In the autumn, no-fault divorce will be introduced in England and Wales. The new law will allow one spouse – or the couple jointly – to make a simple statement that the marriage has irretrievably broken down.

Allegations of adultery, unreasonable behaviour or a two-year wait will no longer be needed before proceedings can be started. 

No-fault divorce will reduce conflict, allowing couples to focus on important issues like children and finances. 

Mediation may not always be appropriate, but where it is, the government scheme provides a financial incentive to attempt to settle matters away from court, and has highlighted this effective means of resolving disputes.

The increased use of mediation and the introduction of no-fault divorce will help reduce acrimony between couples; in turn, this will ease the burden on the courts.

Sarah Hutchinson is a partner at Farrer & Co farrer.co.uk