Compulsory mediation could force the wrong people into a process at the wrong time with the wrong attitude, the Law Society has warned in response to government plans to get more family disputes resolved away from court.
Proposed reforms unveiled by the government would make mediation mandatory for ‘low level’ family court cases. The government would pay up to £500 towards mediation in all cases, replacing the family mediation voucher scheme, which is being extended until April 2025.
Courts could impose costs orders to hold people accountable if they do not make a ‘reasonable attempt’ to mediate.
At present, parties are supposed to attend a mediation information and assessment meeting before making certain applications to the family court. However, in 2021-22, only 33% of eligible applicants attended such a meeting.
Chancery Lane said the most effective way to get couples into mediation is to provide them with early legal advice, which can give couples a ‘reality check’ and confidence that mediation is in their best interests.
Society president Lubna Shuja said: ‘The risk is that compulsory mediation could force the wrong people into the process, at the wrong time and with the wrong attitude for it to be effective. They need to be ready to mediate and have a full understanding of what the process will involve.’
While cases involving allegations or a history of domestic abuse would be excluded from compulsory mediation, the Society warned that the mandatory mediation process may fail to recognise victims and force them into a process that empowers their abuser.
Shuja said early legal advice would help make sure previously unidentified cases are not put forward for mandatory mediation. ‘In some instances, the nature of coercive control in domestic abuse will make this difficult to spot. Early legal advice helps ensure safeguarding issues are flagged and, if necessary, such cases are removed from the compulsory mediation track.’
The government’s consultation also revealed that court fees, which are currently being reviewied, could rise.
The government said most private law children applications start with a £232 fee paid by the applicant at the beginning of proceedings. However, the fee has not changed in real terms since 2008. The government estimates that 20% of the private law system is recovered by court fees when HM Treasury guidance recommends 100% cost recovery.
‘For private law children cases, this involves considering whether the £232 application fee meets an appropriate balance between maintaining access to justice, ensuring the resourcing of an efficient and effective courts system, and encouraging the use of alternative forms of dispute resolution where it is suitable,’ the consultation document says.
Consultees are asked for their thoughts on the role of court fees to support the overall objectives of the family justice system. ‘Should parties be required to make a greater contribution to the costs of the court service they access?’ the government asks.
The consultation closes on 15 June.
