Mediation and domestic abuse: shades of grey

Mandatory mediation seems to be off the cards for now, but the changes to PD3A may well mark an important shift in the approach to dispute resolution when abuse is an issue

As the buzz of Family Mediation Week dissipates, the question of mediation’s place in cases involving domestic abuse remains a contentious one. In its March 2023 consultation the Ministry of Justice proposed mandatory mediation whilst simultaneously but incongruously highlighting the prevalence of domestic abuse. The consultation went on to expand on the statistics of domestic abuse and confirmed that around half of the families coming to the family courts to resolve child arrangements have experienced domestic abuse.

The 2020 report Assessing the risk of harm to children and parents in private law cases paints a stark picture. The report found that families affected by domestic abuse often exhibit high conflict and power imbalances, rendering them inherently unsuitable for conventional mediation or other non-court dispute resolution methods. Additional hearings may be necessary to fully grasp the family dynamics and assess any alleged abuse or harm.

Many women’s aid advocates and charities take a similar and often a blanket approach, discouraging victims of domestic abuse from engaging in the mediation process. The fear is that the alleged abuser will manipulate the process and take advantage of any power imbalance. This makes court proceedings, despite their shortcomings, seem like a safer option.

The exercise to determine the inappropriateness of mediation in cases where domestic abuse is obvious, is simple. However, it is the more difficult but more frequent situations where abuse is more nuanced which often trouble mediators when assessing suitability, raising the question of whether there is a tendency for mediators to err on the side of caution.

Recent case law

In recent years the family courts have been increasingly more directive in their approach to ADR and encouraging parties to actively engage in these processes.

In JB v DB [2020] EWHC 2301 (Fam) Mostyn J directed the parties to engage in mediation or another form of DR:

“The parties are directed in the meantime to use their best endeavours to resolve the issues, if necessary, through mediation or another form of non-court dispute resolution. The court will require at the hearing a full explanation of what efforts have been made to resolve the issues and will want to know why, without breaching privilege, the case has not been capable of settlement.”

Mostyn J later penalised the husband with a costs order for failing to comply.

In the most recent case addressing these issues – Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 – the Court of Appeal held that the court can lawfully stay proceedings to allow for parties to engage in other forms of dispute resolution, providing that the claimant’s right to proceed to a judicial hearing is not impaired and that the response of the court is proportionate.

In WL v HL (Rev 1) [2021] EWFC B10 the court used its case managements powers under Part 3 of the FPR to adjourn proceedings where the costs of the litigation had become disproportionate to the issues involved. The judge directed fortnightly updates by way of a joint letter from the parties’ solicitors, detailing the outcome of the parties’ engagement in dispute resolution processes. Shortly after, the parties had attended mediation and reached agreement.

A leap forward

At the Family Mediation Conference in September 2022, Sir Andrew McFarlane reasserted the view that “the impact on a child from being at the centre of contested court proceedings is now widely recognised as being abusive”. He also raised the following question:

“Why does the State make litigation compulsory for separating couples when one partner turns to the courts, but there is no similar element of compulsion to attempt to achieve a mediated settlement?”

Fast forward to today and the amendments to Practice Direction 3A of the FPR, which come into force on 29 April 2024. The suggestion of mandatory mediation seems to have been abandoned but the amendments demonstrate a sizeable shift. The role of the mediator has been reduced from “assess(ing) whether mediation is appropriate in the circumstances” to a much less discretionary approach, requiring the mediator to “consider and explain the potential benefits of different methods of non-court dispute resolution,” and removing the ability of a mediator to make autonomous assessments as to suitability.

The new PD3A para 10 takes a bold leap forward by requiring parties (who do not fall within the MIAM exemptions) to offer their views on using DR at every stage in the proceedings by way of the completion of a prescribed form, subject to judicial scrutiny. The amendments crystallise the court’s powers to direct adjournments and make costs orders.

The Court of Appeal decision in K v K [2022] EWCA Civ 468 highlights the need for continuous review of DR suitability. In this case the urgent nature of the originating application warranted a justified exemption to attend a MIAM but became irrelevant as the case progressed. Going forward, exemptions will require continuous re-evaluation and may mean cases dipping in and out of suitability for DR depending on the twists and turns of the litigation.

Safeguarding against domestic abuse

These amendments will throw up a number of concerns by legal professionals and will undoubtedly require DR practitioners to re-evaluate their safeguarding policies, ensuring that they are fit for purpose. Below are some of the more frequently used protective measures:

  • remote sessions: these have become routine since Covid and clients often find that physical distance can offer a sense of security
  • encouraging third-party support to provide vulnerable parties with additional confidence
  • if practical, ensuring that parties who remain living in the same house maintain physical distance leading up to and immediately following any mediations, so as to provide some distance and time for emotions to diminish
  • training: mediators must be proficient in identifying and addressing domestic abuse dynamics to create a safe and equitable environment

Conclusion: A balanced approach, not a blanket policy

Litigation abuse is a real concern and should not be ignored. Even with the protective measures that have been increasingly introduced in the family courts to protect victims of domestic abuse, perpetrators can still exploit delays and adjournments (which are sadly synonymous with court proceedings) to inflict emotional and financial hardship on victims. This often pushes victims into difficult choices: abandoning the process out of mental or financial exhaustion or fighting relentlessly, again at a cost to both their own and their children’s emotional wellbeing and financial security. To repeat the aforementioned statement made by Sir Andrew McFarlane “the impact on a child from being at the centre of contested court proceedings is now widely recognised as being abusive”.

The Fair Shares report funded by the Nuffield Foundation and produced by Bristol University shows that of the 64% of divorcees that made financial arrangements, only 17% of those used mediation. One of the reasons for the low uptake of mediation is said to be domestic abuse. One assumes this is due to a lack of legal information and fear of domestic abuse manipulation within the court system. It will be interesting to see the evolving nature of these statistics with the implementation of the revised Practice Direction.

There is no “right” answer. However, prioritising victim safety and ensuring they have access to adequate legal and emotional support whilst endeavouring to resolve matters expeditiously, is essential. As the baton of discretion is passed from the mediator to the judiciary it is questionable as to whether the overburdened judge will have the time to make these nuanced considerations as part of their requirement to make continuous assessments of the appropriateness of DR. It is with keen interest we wait and see the effect of these changes.

STOP PRESS: As we go to press the government has confirmed that,  for now, there will be no mandatory requirement to mediate.