Lawyers oppose making mediation compulsory in family disputes 

Leading law groups have warned the government against making mediation compulsory in family disputes.

The Ministry of Justice has just completed a consultation on compulsory mediation for all ‘suitable low-level’ family court cases.

The Law Society says it supports government efforts to secure amicable resolutions in family disputes but believes mediation should only be voluntary, not compulsory.

Law Society president Lubna Shuja said: “We understand the value of mediation in resolving family disputes amicably without needing to go to court.

“We do not agree, however, with making mediation compulsory. No form of dispute resolution should be mandatory. Attendance must be voluntary for it to be effective.

“Most couples try to avoid costly court litigation and delays to resolution. The types of cases that do require a court hearing or court process – and would be impacted by the compulsory mediation scheme – are complex in nature.

“Complexity needs to be considered, otherwise these proposals could risk harm being done to vulnerable people who are legitimately seeking a court hearing.”

Instead of compulsory mediation, the Society believes legal aid should be extended so that couples can get professional advice as soon as possible, making it easier for them to assess their options and find the best resolution for them.

A spokesperson told the Law Gazette: “Advice provides a reality check, manages unrealistic expectations, assesses a client’s suitability for mediation and provides trusted, legal advice.

“Early legal advice helps reduce conflict early on and helps clients better understand the parameters of their case. This will create significant benefits for both mediation and court processes… There are also benefits for those who must go to court, helping people understand their case better, and helping clients access services they are entitled to in domestic abuse and child abuse cases.”

The family law group, Resolution has also cautioned against compulsory mediation and called for more early legal advice. In a statement it said: “We do not support a requirement for pre-court mediation as proposed in the consultation paper. We guard against forcing families into mediation, regardless of whether it is the best way forward for them.

“We believe that the needs of families would be more appropriately and better met, and demand on the family courts would be reduced, by helping more former couples and parents make informed choices to find the route that gives them the best chance of reaching constructive, lasting outcomes about child arrangements and family finances on divorce.

“This should include the provision of early, tailored legal advice, to encourage out of court solutions and give them the best chance of success.”

The government will now consider the views put forward in the consultation and decide whether to go ahead. We shall keep clients informed of developments.

At Machins Solicitor, we have a specialist family mediator, Richard Philips, who is able to assist clients in achieving a fair negotiated outcome in relation to their family matter. Our Private Family team have a breadth of experience in all private family matters and are able to offer advice and support during or prior to the mediation process, and advise on other forms of dispute resolution where appropriate.

Please contact us if you would like more information about the issues raised in this article or any aspect of family law.