Family Mediation: carrot or stick?
Non-court dispute resolution offers alternatives to separating couples that can reduce the financial, time and emotional burdens often associated with going to court.
Among the many types of non-court dispute resolution in family cases, mediation is particularly effective in a broad range of cases. Because of this and the huge burdens on the courts at present, some are now considering policy options to require couples to mediate, or otherwise more forcibly be required to consider it. There are risks, however, that mandating couples to participate in mediation would undermine a fundamental plank of the process, its voluntary nature, and in doing so lead to outcomes that are less likely to ‘stick’. Is encouraging voluntary participation in mediation the better way forward?
The problem
Everyone agrees that the family courts are overburdened with cases that (in many instances) should be resolved via non-court processes. Policy makers are looking at ever more innovative ways to provide – and perhaps even enforce – the potential for non-court dispute resolution processes to resolve family disputes faster, with less acrimony and lower costs. Although this has been a clarion call for many years in the family justice system, leading to the advent of the MIAM in 2011, the sweeping cuts to Legal Aid 10 years ago as a result of LASPO brought new impetus to the calls for mediation to be brought front and centre in the family justice system. With the traditional gateway to mediation (via funded initial legal advice) gone, mediation stats plummeted and applications to court sky-rocketed. The Family Solutions Group report, ‘What About Me’ (published in November 2020) highlighted the void this has left where there is a lack of public awareness of mediation and poor signposting towards it or any other non-court dispute resolution. Whilst some said recommendations (focused on public education and practitioner training, among other things) were made, the dial hasn’t moved on.
In November 2021 the Justice Minister, Dominic Raab said that “we ought to be much, much better at using ADR, mediation in particular“. In June 2022 he added that he believes that “Mediation protects children, by removing the bitterness of parental disputes from the amplifying court room“. Sir Andrew McFarlane (President of the Family Division), meanwhile, has spoken extensively on this topic, most notably in various speeches in September and October 2022 announcing the ‘Relaunching family mediation’ project. Speaking on BBC Radio 4 in November 2022, he opined that as many as one-fifth of divorce cases are going to court when not required. Family court judges have also contributed to the discourse, most significantly HHJ Wildblood, who has criticised parents vocally for going to court over non-legal parenting decisions and encouraged parents to use mediation instead. It is increasingly common to see family judges voicing their frustration at couples who are over-burdening the court with superfluous applications.
Although there is no ‘one size fits all’ in family law, some leading judges and policy-makers are pinpointing mediation as a process that (almost) all couples should use. A stronger uptake in mediation could ease the demand on the over-stretched Family Court system and lessen the ever-lengthening delays that couples with more complex disputes experience when going through the Family Court.
Over the last decade, some ‘carrots’ have been implemented by policy makers to entice couples to use mediation to resolve their dispute. For example, since 2014 most separating couples who wish to use the court process to resolve their family disputes must show that they attended a MIAM (a Mediation Information and Assessment Meeting). During a MIAM couples will be educated about mediation and assessed for whether it might be suited to their case, with the aim of encouraging awareness and participation. Pursuing mediation following the MIAM is voluntary, and some blockers to couples doing so have been (a) how easy it is for people to circumvent the MIAM requirement, without any checks and (b) how difficult it is to engage the respondent. Another initiative, which has had some success in increasing participation in mediation is the voucher scheme. Any couple who attended their MIAM after March 2021 is offered a ‘mediation voucher’, which pays up to £500 of the couple’s mediation costs, should they pursue this route.
However, despite these ‘carrots’, the number of couples using mediation to resolve family disputes has not risen in the way hoped (the real litmus test being the family courts, which have seen a 5 week increase in private law cases being resolved in the last year alone, and an overall doubling in case length times in only 6 years).
So, how could more ‘sticks’ be deployed to encourage family disputes to be resolved out of court? And is this appropriate?
Recent commentary has suggested that a stricter approach to participate in family non-court dispute resolution could be on the cards. One such option would make attending a mediation session compulsory for all couples before they can even apply to court to resolve their dispute. Another is paving the way for the making of costs orders, to be imposed upon those who (in the view of the court) refuse unreasonably to engage in non-court dispute resolution processes. But both options seek to force couples away from the court without fully guiding them as to what their other options are and what could help them most effectively.
Compulsory mediation
It is clear that compulsory mediation is of great interest to policy makers as an option. This would likely require, as it does in other jurisdictions, couples to attend at least one mediation session before they can make a court application. Exceptions would be built in where there is a serious concern about the individual couple mediating, for example if there was a history of domestic abuse. Such an approach has already been adopted in Australia, where couples in a parenting or child arrangements dispute must attend a one-hour mediation session before they can apply to the court. Sir Andrew McFarlane has openly displayed interest in the Australian system; if it continues to be seen as a success it is possible English legislators could adopt this approach also.
Despite the allure of a mechanism for fast and effective dispute resolution, there are also risks associated with compulsory mediation. Making mediation compulsory may help some couples resolve their dispute sooner, but it also may have a negative impact on others. Many family law commentators agree that mediation is as a process that works best if the parties come to it voluntarily and willing to mediate. In fact, if either party is unwilling to engage, mediation can worsen the situation as parties create harder lines, and anger and resentment is stoked. Secondly, compulsory mediation would delay many couples getting to a conclusion, likely causing unnecessary stress along the way and potentially enabling one party to exploit the process and even benefit from delay (except where used during a natural gap in a court process). Thirdly, to build and maintain a system that can provide high-quality mediation to the thousands of couples who presently pass through the family courts each year will need recruitment and training of additional mediators to build up capacity. To maintain the integrity of the family justice system, extensive checks will need to be in place to ensure that mediators are adequately qualified and are executing their role correctly. How would all that be funded?
Costs orders
The use of costs orders is another route that could force some couples to think more closely about mediation. The court may be given powers to order that a party pay an element of the other party’s costs if the person against whom the costs sanction is imposed refused unreasonably (in the view of the court) to engage in non-court dispute resolution earlier in the process/at all. This practice is commonplace in PI claims where the use of Ungley Orders, which require a party who has been unwilling to use non-court dispute resolution to justify their reasons for doing so at the end of the court process. If the court does not accept their justification as reasonable, they may be ordered to pay a proportion of the other party’s costs. Arguably, there are family cases where this could be done already, for example if there is deemed litigation misconduct. However, this has rarely been exercised. One issue with this deterrent is that it is retrospective, and so doesn’t save the emotional trauma and cost of going through litigation for the parties. For others who really do need the court’s assistance, they may be deterred so much by fear of a costs order against them that they settle prematurely and on the wrong terms. This can be particularly dangerous in relationships where there is an imbalance of power. Another issue it could raise is one of child welfare in cases where making a costs order against one party could have an adverse impact on any children of that party. Further, it could also risk breaching mediation privilege if attitudes to mediation are unpicked and examined by the court (especially where mediation has been attempted by the couple).
Are there more ‘carrots’ that could be used to increase the uptake in non-court solutions?
Early intervention is key. One of the issues with the current MIAM system is that it occurs at a very late stage, when issues have already escalated and positions often hardened. It can be much more difficult to entice parties into effective mediation at this stage, though skilled mediators would say (rightly) that it’s never too late. Early intervention could take the form of access to free or subsidised legal advice at early stages of separation, and/or the option posited by Resolution and the Family Solutions Group of an IAM (Information and Assessment Meeting). An IAM would aim to inform and signpost couples to their court and non-court options as soon as possible post-separation/relationship breakdown when they would likely be more amenable and willing to mediate, and would focus on all forms of non-court dispute resolution. Policy makers must move away from the notion of one size fits all.
Rather than the use of an Ungley Order, which is deployed at the end of court proceedings, earlier mechanisms could be more effective whereby the party refusing to mediate (or use other forms of dispute resolution) has to justify that position before being able to progress through the court system. This requirement could make mediation/other dispute resolution seem more enticing and would encourage the parties to think seriously about non-court resolution before positions are more entrenched.
Additionally, a public awareness campaign that clearly sets out the dispute resolution routes available to couples and how to take those routes could attract more people to use these options. This, coupled with funded initial advice and signposting, may make it even less likely that court is viewed as the default system for resolving family disputes.
Carrot or Stick?
Although encouraging couples to use non-court dispute resolution processes is necessary to help each couple resolve their dispute in the best way that suits them, making it compulsory risks the process losing its effectiveness for some couples. Before the more drastic ‘stick’ approach is taken, which could serve to delay and worsen parties’ positions and relationship, it might be worth policy makers re-thinking their ‘carrots’ to bring more couples to resolve their issues on divorce/separation willingly, rather than being forced into it.