COMPULSION AND COST: THE CONTINUED RISE OF MEDIATION 

Published on 07 March, 2025 | Sarah Manning

Disputes can be difficult to resolve, whatever their nature.

When they occur at the end of a relationship and hinge on details which can determine the shape of a newly single life or arrangements for a child’s upbringing, they can prove particularly challenging to settle.

For some individuals and for some years, resorting to court in order to break the impasse has been something of a reflex.

However, given that family courts across England and Wales already have a substantial volume of issues before them (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2024/family-court-statistics-quarterly-july-to-september-2024), it has long been realised by participants, family law practitioners and politicians alike that litigation may not be the most effective approach to take.

In 2014, legislation was introduced ((https://www.legislation.gov.uk/ukpga/2014/6/section/10)) which made it compulsory for individuals wishing to commence certain types of family court proceedings to first attend what is known as a Mediation Information Assessment Meeting (MIAM).

A MIAM is, in short, a brief session during which a trained mediator explains the benefits of mediation and other methods of non-court dispute resolution as a viable option to settle disputes (https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_03a#para1).

Those merits are not in question.

Guidance circulated to judges in September last year by Sir Andrew McFarlane, the President of the Family Division of the High Court, set out how mediation is so capable of resolving some or all issues that 69 per cent of cases which utilise it end up not having to go to court, saving time, money and no little stress (https://www.judiciary.uk/wp-content/uploads/2024/09/Guide-to-Family-Mediation-for-the-Courts-2024.pdf).

Even so, Sir Andrew himself acknowledged that some people were paying lip service to the idea of mediation, regarding MIAM attendance merely as a box to be ticked en route to court instead of a possible end to disagreement in itself.

“I fear,” he said, “that a culture has developed in the Family Court which accepts that the MIAM requirement is honoured more in the breach than the observance. If this is so it requires addressing” (https://www.judiciary.uk/speech-by-the-president-of-the-family-division-relaunching-family-mediation/).

Ministers, including Dominic Raab, the former Secretary of State for Justice, believed the answer lay in making mediation compulsory to avoid “lengthy and combative courtroom battles” (https://www.gov.uk/government/consultations/supporting-earlier-resolution-of-private-family-law-arrangements/supporting-earlier-resolution-of-private-family-law-arrangements#foreword).

Critics, though, believed that forcing opposed family members to participate in mediation went against the central notion that consensual agreement was best achieved by those who took part voluntarily.

As a result, the Government later backtracked but, in the absence of an element of compulsion, it may be that a further procedural shift and the threat of delays and attendant cost penalties are finally be generating a breakthrough.

In April last year, new rules were introduced, meaning that if family court judges believe that someone hasn’t taken MIAMs seriously enough, they are able to pause proceedings and compel them to go back to an assessment meeting (https://www.justice.gov.uk/courts/procedure-rules/family#:~:text=The%20provisions%20in%20the%20Family,the%20remainder%20of%20the%20provisions).).

Furthermore, scrutiny of whether non-court based methods are being genuinely considered will continue throughout proceedings and, if they are not, judges now have the discretion to make a costs order against the individual who might not be committing to the process.

The additional bite has, in my opinion, had a noticeable effect.

More than my personal experience as a mediator, I am currently the Chair of the annual Family Mediation Week. The most recent such event took place in January and was a great success.

There were not only more lawyers in attendance, wanting to learn more about how best to engage with mediation for their clients’ advantage and avoid penalties.

There was also real consensus about the important role which mediation, arbitration and other forms of non-court dispute resolution can play in cases of all sizes and complexities.

As well as further raising awareness of how useful mediation can be, the latest Family Mediation Week has added to the material, such as webinars, which are now freely available via the likes of YouTube to help professionals helping separating families.

Sir Andrew McFarlane himself has noted that mediation is not always successful in resolving family conflict – although he has added, however, that the court process does not necessarily guarantee success either.

Nevertheless, available figures and anecdotal experience illustrate that a significant majority of those who commit to mediation manage to overcome their issues without having to ask family courts – with all the uncertainty that entails – to make decisions on their behalf.