23rd March 2023

A positive move away from litigation in the family court?

Anna Roiser

Senior Knowledge Lawyer

The news that the government is planning to introduce mandatory mediation in most private family law cases has been in the headlines, with some pointing out that mediation is not suitable for everyone. However, it is also the case that court proceedings are rarely the best process for anyone, save where there is domestic abuse or urgent issues need to be resolved.

It is now well understood that our adversarial court process can increase acrimony at a time when separated parents need to develop a constructive co-parenting relationship. This creates stress for parents and risks long-term harm for children. The ever-increasing delays in our under-funded court system only exacerbate the problem. The President of the Family Division, Sir Andrew McFarlane, elaborated on the issues in an address last year which was pointedly sub-titled “Almost anything but the family court”.

It’s therefore welcome that the government is committed to reducing the number of separating couples who litigate to resolve their disputes. The announcement within the consultation document that separating parents will be supported through funded co-parenting courses is also good news. It now falls to those of us involved in the family justice system to engage with the consultation process to assist the MoJ in implementing the proposals so as to meet their goals.

One important issue which the consultation raises is whether there should be an additional exemption from mandatory mediation (beyond those for cases involving abuse or urgency) where other dispute resolution methods have been attempted. This would be an important qualification, encouraging separating parents - or at least, those with the means to pay - to choose from the wide range of available options and engage in a process which is likely to help them reach a resolution.

Possibilities include hybrid mediation, where lawyers participate in mediation alongside their clients, and shuttle mediation, where the parties are not in the same room and the mediator moves between them – these adaptations can render mediation suitable where it otherwise might not be. Other options include solicitors negotiations, perhaps assisted by “early neutral evaluation”, a written impartial opinion on the likely outcome, or in financial cases a “private FDR” (Financial Dispute Resolution hearing), where a specialist barrister aims to assist the parties in reaching settlement at a without prejudice hearing. “One couple one lawyer” options, such as Hunters’ recently launched Resolve, serve clients who want legal advice tailored to the interests of the whole family.

If implemented well, to include the "other dispute resolution" exemption, it is to be hoped that the new regime would encourage separating couples to engage in a process that suits their circumstances and promotes the interests of the whole family.

That said, there are undoubtedly issues arising from the proposals that will need to be ironed out. A key one is the definition of when a party will be considered to have made “a reasonable attempt to mediate” and so be able to proceed to a court. No suggestion is made in the proposal, with input sought from respondents to the consultation. The suggestion that costs orders be made against parties who have failed to make a “reasonable attempt to mediate” may appeal, but the idea that, in order to determine whether this applies, the right of confidentiality in mediation should be waived, or mediators should be asked for their view, is likely to make many mediators uneasy. The spectre of secondary litigation over whose fault it is that mediation failed is a concern. It is to be hoped that these issues can be constructively addressed within the further work which will need to be done before the provisions are finalised, assisted by consultation responses.

As a final point, it should be noted that many family lawyers already see court as a last resort and seek to steer clients away from it. The decimation of family legal aid in 2012 deprived many of the benefit of such advice. Early legal advice can be crucial to manage expectations and provide guidance on the range of available processes. The re-introduction of funded legal advice for those unable to pay for it would also do much to further the government's aims.