Mediation: Education And Compulsion 

Published on 07 July, 2022 | Judith Klyne

It is no great secret that the court system in England and Wales is facing a tremendous challenge.

The volume of work which, for example, family courts deal with is immense.

Just last week, the Ministry of Justice published figures showing that more than 68,000 new cases began during the first three months of this year alone (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2022/family-court-statistics-quarterly-january-to-march-2022).

The number of cases which were resolved during that period was down 12 per cent on the same quarter in 2021.

Divorces, the department conceded, were taking more than a year (56 weeks to be precise) from the submission of a petition to the granting of a final decree.

There was also a nine per cent drop in the resolution of cases featuring children.

We should perhaps not be surprised, therefore, that concerted efforts have been made to find a way of sorting the difficulties which lead to individuals heading to court in the first place.

The President of the Family Division of the High Court, Sir Andrew McFarlane, is one of many people who believe that at least part of the answer lies in Alternative Dispute Resolution (ADR).

In a speech last October, Sir Andrew outlined his confidence that there was “a better way” to address family conflict, including one form of ADR – mediation (https://www.judiciary.uk/announcements/speech-by-the-president-of-the-family-division-supporting-families-in-conflict-there-is-a-better-way/).

As regular readers of this ‘blog will be familiar, mediation is one of the services provided here at Hall Brown.

That is one reason why I was particularly interested in press reports in recent days suggesting that the Justice Secretary, Dominic Raab, might make mediation a central part of his mission to reduce the number of cases appearing before family courts nationwide.

However, one article in the Sunday Times indicated that he was considering introducing new rules to make mediation compulsory.

Mediation involves spouses in dispute about how best to divide assets or parents disagreeing about how best to look after their children sitting down with an independent, trained mediator.

A mediator doesn’t make a decision on the facts of a case but instead guides participants to come up with solutions themselves and ensure that the solution arrived at is workable, both on a legal and practical basis.

Unless one of a number of clearly defined exemptions apply, individuals are required to attend a Mediation Information Assessment Meeting (MIAM) before being able to make a court application.

A MIAM is an informative, introductory session designed to explain the benefits of mediation and consider whether the matter at issue is suitable for the process.

The MIAM is, though, the only compulsory part of the entire mediation process. One of the core principles of mediation is that it is voluntary.

Although it might seem a formality for those people intent on going to court, others leave that session fully appreciative of how mediation enables a very personal form of resolution.

Further data produced by the MoJ illustrate that such sentiments are far from isolated.

Two-thirds of the couples who went to a MIAM in the last financial year decided to embark on a full mediation. Almost all of those individuals managed to settle their differences without having to go to court (https://data.justice.gov.uk/legalaid/Legal-aid-mediation).

That, in my opinion, is because they understand there’s no need to do so. Often, discovering that it’s possible to discuss solutions reasonably while avoiding the additional cost, stress and delay associated with court hearings is something of a revelation.

Everyone involved in family court work knows that the acute strains on the system need to be addressed.

I don’t feel, though, that the answer lies in applying an element of compulsion to those who might choose mediation to escape unnecessary pressure.

Education and awareness about the merits of mediation is – in my experience and that of many of my peers – all that is required to convince families of how calm discussion is eminently more preferable to court and conflict.