ACSO recently submitted a response to the Ministry of Justice (MoJ) consultation on supporting earlier resolution of private family law arrangements. Thank you to all members who helped formulate our response.
We support the use of further alternative dispute resolution (ADR) in the family law sector, and agree more needs to be done to ensure parents consider mediation instead of applying to court straightaway. This will minimise the impact on children and reduce the current court delays. The financial support from the MoJ to subsidise mediation for both child arrangement orders and financial order is also welcomes. However, there are concerns about the current proposals.
For example, no significant consideration was given as to whether the current mediation infrastructure would be able to cope with a significant rise in demand, and mediators would also need substantial training to ensure consistency as some do not have a family law background. We also proposed that if the MoJ proceeded with mandatory mediation, then other forms of ADR should provide an exemption to the requirement to mediate. There is no clear benefit in forcing a couple who have attempted ADR to mediate.
Furthermore, we raised concerns that couples will need to ensure they make a ‘reasonable attempt to mediate’ or face costs orders. This term could be unintentionally inflammatory in a family law context and could be used by one party to manipulate the other. We would not support cost orders on applicants unless they wilfully ignore the advice of their mediator and solicitor over a trivial matter. In addition, several of the proposed definitions within the consultation represented ‘box-ticking’ exercises, such as a minimum number of sessions or a minimum period mediating before applying to court. These approaches may not only elongate the process but would also be an inefficient use of public funds.
While mandatory mediation would be ideal, there needs to be recognition that it will not always be suitable. There will be imbalances in relationships which would not meet the legal test for domestic abuse but could make mediation problematic. For example, one partner may have a very dominating personality, or one partner may have a degree of financial control over the other which could lead to arbitrary results during mediation. Furthermore, some matters are so complex that couples will need independent solicitors and mediation would not be appropriate. We do not believe in using taxpayers' money to support mediation where it is clearly not suitable.
Any changes to the sector must not inadvertently overlook the expertise of solicitors and minimise their involvement. Solicitors are often best placed to determine whether mediation is appropriate for their client, even if just used to narrow down the issues. The MoJ should consider affording discretion to solicitors to determine whether mediation is suitable for their client as opposed to mandatory mediation. Indeed, cost orders could be imposed on a solicitor who fails to consider mediation adequately. If solicitors had more guidance on whether mediation was appropriate there would be no requirement for a Mediation Information and Assessment Meeting and these would only be retained for Litigants in Person, subject to exemptions such as domestic abuse.
While ACSO raised concerns about various aspects of the proposals, there is no easy solution to the issues the courts are facing. However, mandatory mediation as proposed may exacerbate the issues it is trying to solve. Therefore, we hope the concerns raised and the alternative approaches suggested will assist the MoJ in finalising its plans.