Compulsory mediation proposals announced

The government has today released details about the new mediation protocol that compels couples in a contentious divorce to participate in mediation. 

From April separating couples must assess whether mediation would be a better way of resolving their disputes instead of going to court. This will take place through one mediation awareness session, where both parties find out what the process can offer before they decide if it is right for them, and replicates the system already in operation for couples granted legal aid. It will not apply to couples not planning to contest their terms in court.

The requirement has been added to the Family Proceedings Rules and will come into effect from 6 April. It will require the person initiating the case to first go to a professional mediator, who will engage the other party and arrange a mediation awareness session to explain the process to the couple - either together or individually. They will be required to present evidence of this before their case will be accepted by the court.

However paragraph 13 of the relevant Practice Direction 3A states that an applicant does not have to use a mediator if "The applicant (or the applicant's legal representative) contacts three mediators within 15 miles of the applicant's home and none is able to conduct a Mediation Information and Assessment Meeting within 15 working days of the date of contact".

There is evidence that there are insufficient numbers of qualified mediators across the country to cope with the expected increase in demand and some applicants may be able to use this clause to avoid mediation. 

Ian Bloxham, manager of Bristol Family Mediation, says that it is difficult to estimate quite how much increased demand will arise. "I would think exemption on grounds of geography (15 miles) or waiting time would be relatively rare in this area, but may be affected in the short-term if demand is much higher than expected," he said.

Some family lawyers argue that the government is 'naive' to think mediation will always work. Tina Dunn a partner at Mace & Jones family law team said: "It is our view that all clients should be offered alternative dispute resolution such as mediation or collaborative law. Any assistance to maintain amicable relations particularly where children are involved is absolutely the right approach," she said.

"However, it would be naive to think that alternative dispute resolution is right in all cases. Unfortunately some clients need to have a court ordered outcome."