Forced Growth: Family Courts, Children And Compulsory Mediation 

Published on 03 April, 2023 | Judith Klyne

Regular readers of this blog will recognise that the degree of workload handled by the family court has been something of an issue of concern in recent years for politicians, the judiciary and family lawyers alike.

Even if we discount the impact wrought by the pandemic, it doesn’t take much effort to see how family courts have been under a great deal of strain.

Last December, the Ministry of Justice produced the most recent figures on the volume of matters processed by family courts across England and Wales (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2022/family-court-statistics-quarterly-july-to-september-2022#children-act—private-law).

They revealed that 65,691 new cases started in family courts between July and September alone.

Furthermore, cases are taking longer than ever to resolve.

On average, private law children’s matters resolved last summer had taken 45.6 weeks – exactly twice as long as they had done during the same period just five years before.

Such calculations are, of course, much more than a merely academic exercise. I know only too well that any and every delay can have serious and sometimes lasting consequences for the families involved.

In an effort to find a solution, the Government has announced what it describes as a “major shake-up” of the family court system (https://www.gov.uk/government/news/plans-to-protect-children-under-new-mediation-reforms).

Under the proposals, parents will be forced to attend compulsory mediation sessions to try and resolve disputes about childcare arrangements. If they refuse, they could be even be fined.

The aim, says the Ministry of Justice, is to avoid children “witnessing their parents thrash out family disputes through the courts”.

Although few would dispute the need to make family courts more efficient and unsettling for those involved, I don’t think that I am alone in harbouring some reservations about the suggested execution.

As a trained mediator, my main concern is that any element of compulsion instantly undermines one of the four key principles of mediation; namely, that it should be an entirely voluntary process.

The idea is that a mediator facilitates a discussion between participants about how best to arrive at an equitable resolution to their disputes – whether they’re about children or the division of joint marital assets.

Participants come up with and then explore suggestions about how to move forward.

As the rules currently stand, individuals wanting to apply to air their grievances in court must first attend what is known as a Mediation Information and Assessment Meeting (or MIAM, for short).

Some individuals, who might always view a day in court as their objective, will pay lip service to the idea of mediation.

That may account for the fact that yet more data from the Ministry of Justice showed a 10 per cent drop in the number of mediation resolutions last summer, compared to the previous year (https://www.gov.uk/government/statistics/legal-aid-statistics-july-to-september-2022/legal-aid-statistics-england-and-wales-bulletin-jul-to-sep-2022)

However, many more people each year discover how mediation is more flexible, faster and considerably less expensive than going to court.

Those same MoJ figures showed that roughly two-thirds of mediations do produce a positive outcome.

Mediation is perfectly in keeping with the so-called ‘no order’ principle when it comes to dealing with children matters, meaning that family courts do not really want to have to issue orders in those circumstances unless it is unavoidable.

Parents are considered to be the best placed individuals to make decisions about what is in the best interests of their children.

Having a flexible arrangement reached and better communication which often results from the direct understanding of respective positions in mediation is generally regarded as hugely beneficial as children grow.

On the other hand, court orders may be useful to deal with specific issues in the shorter term but can often be too rigid to provide lasting harmony.

There is another element to the latest Government proposals.

As well as being voluntary, mediation should also be confidential, which raises the question as to who will report the kind of non-compliance which could result in fines and how it will be done.

We should remember, of course, that mediation is suitable for far more than addressing discussions about how children should be cared for.

It is a topic which has also been raised in recent days in an interview given by Baroness Fiona Shackleton (https://www.thetimes.co.uk/article/798ea762-ca89-11ed-94e6-b14cdf80e31b?shareToken=7f71d942c04d021f03afd5c6292ad6d2).

Speaking after the Government confirmed that it would order a review of the laws governing the financial aspects of divorce, she explained that reform was necessary to remove some of the adversarial nature of such discussions as things stand.

The bottom line, she told the Sunday Times was that, “kind means everything”.

It is just one reason why Baroness Shackleton, myself and all my colleagues at Hall Brown have an obligation to outline the various merits of Alternative Dispute Resolution (ADR) to clients. They include not just mediation but also arbitration and collaborative law.

Rather than driving every case to court, we have a vested interest in having clients avoid a high level of costs and settling their differences with the minimum of delay and fuss.

Most of my clients come from the recommendation of previous clients and from other professional advisors, therefore, you could say that it would be bad for business if I stoked rather than tried to defuse frictions.

There is, in my opinion, one key ingredient to a successful mediation.

A good mediator will always highlight the benefit of participants taking independent legal advice both before and between each mediation session.

Being better informed makes for a more constructive discussion and gives even better prospects of an optimal outcome.

That very point was made by Sir Andrew McFarlane, the President of the Family Division of the High Court. “Exposure to advice about mediation before active engagement”, he said, “has a proven track-record” in helping some people achieve success (https://www.judiciary.uk/speech-by-the-president-of-the-family-division-relaunching-family-mediation/).

It remains to be seen whether the latest Government proposals become law.

I believe that we should be doing more than simply swapping the pressure of the courtroom for the pressure of compulsory mediation if we are to help families put lasting solutions in place.