The government has launched a proposal to mandate mediation for separating families with an overall aim to protect children from the damaging impact of bitter courtroom battles.

In what the press release describes as 'a major shake-up to the family justice system', the proposal seeks to move 'up to 19,000 cases’ out of the courtroom making mediation mandatory in all suitable family court cases with exceptions for domestic abuse cases and where there are safeguarding concerns. The proposed changes would require all separating couples to attempt to agree their child custody and financial arrangements through a qualified mediator with court action being a last resort.

Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice Dominic Raab MP has highlighted: "When parents drag out their separation through lengthy and combative courtroom battles it impacts on their children’s school work, mental health and quality of life. Our plans will divert thousands of time-consuming family disputes away from the courts - to protect children and ensure the most urgent cases involving domestic abuse survivors are heard by a court as quickly as possible."

Since 2014, it has been a legal requirement to attend an initial mediation meeting before issuing a court application to resolve a family dispute, unless the applicant qualifies for one of the fairly limited exemptions. Family law judges are currently under a duty at every stage of proceedings to consider if alternative dispute resolution is appropriate and even have the power to adjourn cases and redirect parties to mediation to reach an out-of-court settlement before continuing with the litigation. However, this overhaul hopes that by making mediation mandatory, the number of cases going to court will reduce, and in turn, minimise the backlog in the family courts and also looks to make the process of separation or divorce less adversarial, and reduce the emotional impact on children and financial burden for families. The proposal also looks to introduce a new power for judges to order parents to make a reasonable attempt to mediate with possible financial penalties if they act unreasonably and harm a child’s wellbeing by prolonging court proceedings.

The drive towards alternative dispute resolution is welcome in order both to take disputes out of the Family Court and to protect children in these fraught cases. However, mediation is, by its very nature, intended to be a voluntary process and so the suggestion of making it mandatory flies in the face of that principle. Mediation is an incredibly effective forum to resolve many disputes and it is undoubtedly true that there are cases in the court system that ought to be capable of being resolved without litigation. However, mediation is not suitable for every family’s circumstance. Whilst the recent announcement acknowledges the need to divert cases out of the ever-struggling, over-burdened and under-resourced Court  system and mediators will welcome the significance placed on their role in seeking to assist parties to resolve disputes, it is by no means a quick fix to the current challenges.

The proposals will be subject to a government consultation which will run for 12 weeks from today, closing on 15 June 2023. For more information on the process of Mediation click here.

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