With the dust settling on recent government announcements regarding compulsory mediation for separating couples, it’s evident that there have been significant changes in family law. While the decision not to enforce mediation may appear to maintain the status quo, there are nuanced changes on the horizon that could profoundly impact how disputes are resolved in family matters.

Government Mandates and Mediation

Following a year-long consultation on compulsory mediation, the decision not to mandate it may suggest to some that one party in a divorce could still opt for the court route, potentially disregarding the preferences of the other. However, amidst this headline, other developments are brewing, promising to reshape the landscape of family dispute resolution.

From April onwards, amendments to the Family Procedure Rules will come into effect, offering new guidance that effectively encourages couples to explore alternatives to court. This shift echoes a significant Court of Appeal ruling in November, allowing judges to order Non-Court Dispute Resolution (NCDR), thereby expanding the avenues available for resolution.

Legal Precedents: Insights from Churchill v Merthyr Tydfil Borough County Council

The landmark case of Churchill v Merthyr Tydfil Borough County Council (2023) affirmed the judiciary’s authority to stay proceedings for NCDR, supplemented by provisions for cost orders against obstructive parties. These changes, though rare in family courts, signify a departure from traditional litigation-centric approaches towards a more collaborative and efficient resolution process.

Moreover, amendments to the mediation assessment meeting requirement further emphasise the judiciary’s commitment to promoting alternative dispute resolution. While exemptions remain for cases involving abuse or urgency, the overarching goal is to encourage a more holistic consideration of dispute resolution options.

Despite these progressive steps, the effectiveness of these changes’ hinges on judicial enforcement. While some judges have already demonstrated a willingness to divert cases from court towards mediation, consistent implementation remains uncertain.

Challenges and Opportunities in Mediation

Notably, the burgeoning backlog within the court system serves as a compelling incentive for prioritising alternative dispute resolution methods. The protracted duration of court proceedings, averaging 45 weeks according to Ministry of Justice data, underscores the urgency of embracing more efficient approaches.

Mediation emerges as a viable alternative, offering swifter and more cost-effective resolutions compared to traditional litigation. The government’s Mediation Voucher Scheme has been instrumental in incentivizing mediation uptake, with a significant proportion of participants achieving favourable outcomes outside of court.

However, despite the merits of mediation, challenges persist, particularly concerning access and awareness. The rise of litigants in person underscores the need for broader legal aid provisions and enhanced public education on alternative dispute resolution mechanisms.

Destigmatizing Mediation: A Call for Collaboration

Considering these developments, there’s a growing imperative to destigmatize mediation and foster a culture of collaboration and informed decision-making among separating couples. As family law evolves, emphasis must be placed on empowering individuals to navigate disputes with dignity and respect, prioritising the best interests of all parties involved, especially children.

In conclusion, while the landscape of family law undergoes profound transformation, mediation emerges as a beacon of hope, offering a more humane and effective means of resolving disputes. As we embark on this journey of change, it’s imperative to recognise the importance of equitable access, informed consent, and collaborative engagement in shaping a brighter future for family justice.

About Emma Gallant

Emma is an associate working in our Family Law Department and is based in our Cambridge House, Norwich Office.

Whether you're seeking advice on mediation, divorce proceedings, child custody matters, or any other family law issue, Emma is dedicated to helping you achieve a positive resolution.

Emma Gallant | Associate Family