Government’s Response To Early Resolution Consultation

Following Family Mediation Week, the Government has published its response to proposals on early resolution in private family matters. 

Background

The consultation paper was published on 23 March 2023. The proposals put forward included:

• Supporting parents/carers to resolve their children and financial arrangements without court involvement
• Introducing a requirement to make a reasonable attempt to mediate before applying to court 
• Accountability on the use of cost orders

The Government invited responses on proposals to encourage an earlier resolution of private family disputes.  

Concerns

Family law practitioners recognised the inherent risk of implementing a rule mandating that separating couples or parents must attend mediation prior to seeking court assistance. Firstly, one of the core principles of mediation is that parties come together voluntarily. If the choice is taken away from parties, it is not likely to be as effective or alter the outcome of the case. 

It would prevent parties from submitting a court application to make arrangements for their children without having attended a compulsory mediation session. This could be detrimental to parties who feel a formal court process is the only viable solution for their situation. 

Similarly, concerns were raised about the impact this requirement would have on domestic abuse survivors. Many respondents to the consultation were concerned that the proposed exemptions would not be enough to adequately protect survivors of domestic abuse from being required to attend mediation when it is not suitable or safe for them to do so.  Implementing such a rule would have risked making victims of domestic abuse feel compelled to mediation with their ex-partner to progress to court. 

Government’s response

The Government has taken note of concerns raised and has formally abandoned proposals to make it compulsory for separating couples and/or parents to attend mediation. Whilst the Government continues to seek alternative ways for couples to separate or make arrangements for their children in a less confrontational way, it has recognised that compulsory mediation is not the way forward. 

What changes are to be made? 

The Government has announced a legal advice pilot to help families solve child arrangements quickly and address barriers to early resolution. It is committed to implementing a more problem-solving approach in family proceedings involving domestic abuse allegations and its current pilot in North Wales and Dorset will be expanded to courts in Birmingham and south-east Wales ahead of a national rollout.

In the response, it has stated that judges should continue to encourage mediation in cases where it is appropriate. 

The Government highlighted that its mediation voucher scheme has so far being successful in helping over 24,600 families resolve their issues away from court. 

Our view

Mediation can be an extremely effective tool to resolve family disputes and free up court time, but it is not an appropriate process in all cases. The voluntary nature of mediation and the willingness of both parties to engage in the process is what makes it an effective alternative to court. We welcome the Government’s response. Sir Andrew McFarlane, president of the Family court, said: “If implemented, the range of initiatives published are likely to be of genuine benefit in assisting many separating parents to resolve disputes over the care of their children promptly and without going to the family court”.