Parents Facing Fines for Refusing Mediation

Under New Proposals in England and Wales, parents could face fines for refusing mediation before separating.

Government Set to Make Mediation Mandatory

The government’s aim is to make mediation sessions mandatory for parents looking to legally separate. The government will be offering funding support to divert cases away from the family courts which are currently under a lot of strain. With the current lengthy court proceedings, it is hoped that reducing families going through the courts will help prevent harm to the children in those families.

Reducing Lengthy Courtroom Battles

According to recent data, almost 29,000 new divorce applications were made in the three months between July and September 2022, with demand increasing after the recent introduction of no-fault divorce. As a result, the family law courts have seen large backlogs causing for lengthy legal proceedings.

Justice Secretary Dominic Raab claims that these “lengthy and combative courtroom battles” are harmful for children.

However, the Law Society has warned that mandatory mediation could put victims of undetected coercive control in a vulnerable position.

The government is currently launching a consultation on the policy before it is launched.

Where Does Mandatory Mediation Apply?

As it stands, mediation is available to any couple where they would wish to agree on the practicalities of the split in the presence of an independent specialist. There is no current requirement for mediation prior to going to court.

If you are looking into mediation, our family law solicitors are here to help.

The policy applies to separations where children are involved. Additionally, the government is also looking more broadly at compulsory mediation for couples without children, and how funding could be achieved for this.

Under the proposed plans, judges will be able to order separating couples to make a “reasonable attempt” to agree on matters such as child custody and financial arrangements in mediation and will face fines “if they act unreasonably and harm a child’s wellbeing by prolonging court proceedings”.

The new rules will not apply to relationships where there has been domestic abuse.

The Law Society has warned that the policy “risks sending people to mediation who should not be there”.

Richard Miller, the organisation’s head of justice, told the BBC mediation was “absolutely vital” in many cases, but in situations where there was an “imbalance of power”, it could lead to “unjust outcomes”.

He adds: “Relationships, where there is manipulation or coercive control, can be very difficult to spot initially, and those on the receiving end of that sort of abuse might not even understand the extent to which they are being controlled themselves.”

Demands For Clarity on How Domestic Abuse Survivors Will Be Kept Safe

Women’s Aid has said clarity is “urgently needed” to understand how the Ministry of Justice will ensure all domestic abuse survivors will be kept safe and allegations will be properly investigated.

The charity’s head of policy, Lucy Hadley, says survivors “frequently fear they will be accused of parental alienation” if they raise domestic abuse.

“This lack of disclosure means the proposed exclusion of domestic abuse cases from mediation will not always work, and we fear that women will be re-traumatised by mediation with their perpetrators.”

She adds, “if mediators don’t have a thorough understanding of domestic abuse – or even know abuse is a factor in a case – these processes will ignore unequal power dynamics, exacerbating the abuse women experience and putting them at further risk.”

Calls for the Reintroduction of Early Legal Advice

Mr Miller called on the government to reintroduce aid for early legal advice. Early legal advice was which was cut from private family cases in 2012. That would make it easier for people to see a solicitor before any mediation to provide an extra safeguarding measure.

It is common practice for an assessment to be held prior to mediation to determine suitability, and some couples may be referred to the court at that stage.

Consultation to Look at Funding Under the Legal Aid Thresholds

The government’s consultation is additionally looking into whether divorces should be funded under legal aid thresholds.

The Ministry of Justice believes mandatory mediation could help up to 19,000 families a year in agreeing terms without going into the court system.

Mr Raab recently supported the imposition of harsher sentences for domestic killers who use coercive control on their victims. He stated that this move would enable judges to prioritize urgent cases involving domestic abuse survivors and ensure they are heard in court as quickly as possible. The Family Mediation Council (FMC) welcomed the announcement, saying it would help families avoid the stress and delays of going to court.

Under the new plans, the government will provide a voucher worth up to £500 to fund sessions with a qualified mediator. The FMC reports that registered mediators charge an average of £140 per person per hour, but costs and the number of sessions required may vary.

The Ministry of Justice (MoJ) has revealed that a mediation funding scheme has already supported 15,300 families and will be expanded with an additional £15m of government funding. According to the department, more than two-thirds of the initial 7,200 scheme users “reached whole or partial agreements away from court.”

A 12-week consultation on the plans began on Thursday and will close on 15 June.