The future of mediation

Dramatic increases in the number of court applications relating to children and financial proceedings over recent years have led to a growing tide of opinion that mediation is the way to go. Indeed, Sir Andrew McFarlane’s recent speech on the possibility of compulsory family mediation may mark the beginning of a shift in how we approach solutions to the issues that arise during relationship breakdown.

The problems

With the latest statistics showing that there were 65,691 new cases started in family courts from July to September 2022, it is no secret that the courts are overburdened by the influx of family applications over the last few years. A problem only exacerbated by the Covid-19 pandemic, there is a significant backlog of cases that the family courts are struggling to address, causing lengthy delays.

The solution?

Family mediation is not only a way to take the pressure off the courts and reduce the backlogs, but is also a cheaper, quicker, more collaborative and less stressful alternative to court proceedings. It can offer a wide range of flexible options which it might not be possible for a court to impose and can often help to facilitate a positive relationship between separated couples for the good of any children involved.

In contrast, to the majority of people, the prospect of going to court is daunting both emotionally and in terms of the financial strain it can pose and it can mean that proceedings take a considerable time.

When widely accessible, mediation can be a successful way of keeping cases away from the stress and expense of court. In March 2021, the Ministry of Justice introduced a voucher scheme whereby families could apply for £500 vouchers to be put towards the cost of mediation. The success of the scheme speaks for itself: by as early as October 2021, Sir Andrew McFarlane revealed that over 2,000 vouchers had been distributed and three-quarters of eligible cases had been successfully fully or partially resolved out of court.

The future?

Sir Andrew McFarlane, president of the family division, has considered the possibility of making mediation compulsory for separating couples. He cites the requirement introduced in Australian law in 2021 for parties to make a genuine effort to resolve their disputes away from court. With a triaging mechanism and support systems in place, the early pilots are showing early signs of success. However, a cautious approach to any changes in England and Wales would be necessary to ensure safeguarding, particularly in cases where there is a risk of domestic abuse.

Mediation is also not the most satisfactory approach in all circumstances. To quote I. Stephanie Boyce, The 2021-2022 president of The Law Society: “The cases that go to court are often complex and may not be suitable for mediation.” In this article, Boyce therefore, advocates for the use of mediation as one option of many forms of alternative dispute resolution (ADR) that should be used to address the issues that courts are facing.

For example, there is also the option of using arbitration. Whereas the role of a mediator is to facilitate discussion between the parties and not to impose a decision on them, an arbitrator will make a final decision that the parties agree to be bound by. Arbitration and mediation can be used in combination: if the parties have agreed on almost everything in mediation aside from a few sticking points, they can then ask an arbitrator to decide only these final issues.

Although mediation is unlikely to be a catch-all solution in all cases, there are significant benefits to making it more widely accessible and available either in combination with other forms of ADR or as a single option among many. As Sir McFarlane notes, it would be a mistake to focus entirely on mediation without the rest of the ‘patchwork of resources’ available to support separating partners. Perhaps, with the Ministry of Justice’s increased and continuing promotion of mediation and other forms of ADR, people may be encouraged to at least consider it as part of their road to resolution.

If you would like more information about the issues discussed in this article, or family law generally please call Anthony Collins Solicitors on 0121 200 3242 or contact our family team.

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