Mandatory mediation for separating couples

Under the Children and Families Bill, which came into force in April this year, separating couples will be required to go on a mediation session. What will this mean to the family justice system? Will it result in couples resolving their disputes through mediation and not having to go to court?

As of April 6, 2014, any couples striving to contest the terms of their separation in court will be required to consider mediation. Anyone wishing to make a "relevant family application”, which is essentially an application for financial provision, must attend a Mediation Information and Assessment Meeting (MIAM). The new legislation is aimed at giving couples the opportunity to find out more about mediation so they can consider it as a non-court based dispute resolution.

The new rules have been agreed between the Ministry of Justice and the Judiciary.

How will mediation take place?

Mandatory mediation, the intervention of a dispute in the aim to resolve it, is taking place through one mediation awareness session. During this session both parties present will be informed of what the process can offer before deciding whether it is a viable route for them to go down. However, according to the Ministry of Justice, the system does not apply to couples who are not planning to dispute their terms in court.

Are there any exceptions?

After the initial session, if both parties feel mediation is likely to help resolve their dispute, they will pursue further mediation sessions. If however one member of the separating couple or the mediator feels this form of resolution is not for them, or there is a risk to someone's safety or well-being, the couple will be made exempt from mediation. Their case would then head towards the court.

In certain circumstances a case would proceed directly to court and there would be no requirement for the couple to attend MIAM. Such circumstances would likely to be in cases of domestic violence or child protection.

A better solution?

The Minister of Justice, Jonathan Djanogly said mediation was "a quicker, cheaper and more amicable alternative” to the over-worked family courts. Talking about mediation sessions being a "better solution” for separating couples instead of going to court, Jonathan Djanogly said:

"Mediation already helps thousands of legally-aided people across England and Wales every year, but I am concerned those funding their own court actions are missing out on the benefits it can bring. Now everyone will have the opportunity to see if it could be a better solution than going straight to court.”

Financial implications

As the government is cutting the legal aid for many separating couples, if they cannot mediate after the mandatory initial meeting, they will have to pay for court representation and legal advice. Some lawyers argue that cutting legal aid will amount to a denial of access to justice.

"Creating a myth”

The government has also been accused of "creating a myth" that mediation will solve separating couples' difference without them having to go to court. Linda Lee, president of the Law Society, which represents lawyers in England and Wales, questions whether mediation is an appropriate means to settle couples' disputes and is cynical about the government's real intentions.

"The government is creating a myth that mediation is a panacea in order to justify cuts to legal aid which takes areas such as this, where people desperately need advice out of scope.”

Opinion whether MIAM is a good and viable alternative to court cases may remain divided. What is more concrete is that there is likely to be much more work required before large volumes of people exit the court system in search of alternative methods to resolve disputes with ex-partners.

What are your views about making mediation sessions compulsory for separating couples as a means of avoiding going to court? Welcomed and viable? Or inappropriate and impractical?

If you have any issues or concerns about an area of family law, get in touch with Tracey Miller Family Law and one of our divorce and family law specialists will provide you with help and advice.