Resolution has today (Thursday 15th June 2023) responded to the Ministry of Justice’s consultation on supporting earlier resolution of private family law arrangements. In its response, Resolution stressed that:
- Mediation helps and will continue to help many families who choose to use it.
- But it is not right for everyone, and should not be forced upon anyone.
- Other forms of out of court dispute resolution need to be considered and funded.
- Families should also be provided with access to early legal advice.
In response to the Ministry of Justice’s open consultation on supporting earlier resolution of private family law arrangements, Resolution, the campaigning body representing 6,500 family justice professionals, has guarded against Government proposals which could see thousands of families forced into mediation, regardless of whether it is the best way forward for them.
In its response, Resolution says:
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.
For some families, reaching agreement themselves, either independently or with the support of a suitable, trained professional, such as a family mediator, is often the best way of arriving at a long-term solution, and in the best interests of any children. However, Resolution does not support the requirement for pre-court mediation as proposed in the consultation paper.
Grant Cameron, the new National Chair of Resolution, says: “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.
“We welcome anything that can help families avoid court where it is possible, safe and appropriate for them to do so, and understand that mediation will help many families, and can be a very effective method of resolving disputes. However, it is not a panacea, not right for everyone and not the only way of resolving issues.”
Resolution broadly welcomes the consultation proposals around attendance by parents at a co-parenting programme where it is safe to do so and will not cause harm to the child. But believes more could be achieved by the current system, supported by public education, by the proper and consistent enforcement of Mediation Information & Assessment Meetings (MIAMs) at the gatekeeping stage and beyond, and use of existing court powers to encourage the use of out of court dispute resolution.
Grant Cameron continues: “Mediation is a successful dispute resolution process in suitable cases, but the collaborative process, round table negotiations, arbitration (both the children and money schemes), private FDRs and other forms of out of court dispute resolution may be more suitable or alternative options in some cases.
“The model proposed is likely in practice to work against the provision of information on all options which may be suitable. There is a need for a semantic shift to the most suitable alternatives in the pre-court space, rather than forcing people down one route.”
In response to the consultation, Resolution set out its main recommendations for change, including:
- Provide families with access to legal advice
Tailored legal advice should be available as an integral part of encouraging the use of out of court dispute resolution and maximising its chances of success, and to manage people’s expectations before the making of an application to court.
- Expand the scope of the existing Family Mediation Voucher Scheme voucher scheme
Vouchers should be available for mediation about finances on divorce, and for the drafting of consent orders, as well as mediations relating to child arrangements. The mediation process differs from the court process and the current restrictions can make the mediation process more complex and restrictive than necessary.
- Provide sustainable legally aided family mediation
Resolution has long called for a realistic increase in legal aid rates paid for family mediation; a separate fee element for child inclusive mediation where the mediator meets with the child; and properly funded MIAMs.
It is essential to have a simplified process (to explain, evidence, apply and audit) to access eligibility for family mediation and to increase the number of families accessing/benefiting from it.
- Replace Statutory Mediation Information & Assessment Meetings (MIAMs) with Advice and Information Meetings (AIMs) delivered by a range of suitable family justice professionals
Giving both parties access to a broader and more rounded AIM would provide advice on options/processes and early legal information. It should be earlier in the separation process, before minds are set on court and an application to court is considered, about the different ways of proceeding and to help couples and parents make an assessment of what might fit best for their circumstances and produce a fair and lasting outcome.
Grant Cameron concludes: “Our members are helping families avoid court every day – the decrease in legally aided mediation numbers since public funding was removed for the majority of family cases is testament to the role tailored legal advice can play here. Government should provide support for early legal advice so that separating couples are better equipped to make choices about important issues like family finances and what arrangements are made for their children.
“Whilst we support anything that helps inform families about the solutions available to them, we have a real concern that forcing couples into mediation could reduce the likelihood of success. It also raises concerns where the risk of domestic abuse, particularly controlling or coercive behaviour, or other safeguarding issues are at play.”