Plans to make mediation mandatory before a separating couple can go to court is likely to reduce demand for legal services providers, the Ministry of Justice (MoJ) said yesterday.
The mediation sector would benefit from an estimated extra 25,000 mediations a year.
A consultation proposed primary legislation mandating mediation in private law child arrangement and financial remedy cases without issues such as domestic abuse allegations, urgency or certain child protection circumstances.
There will be an information meeting first – similar to the current mediation information and assessment meeting (MIAM) – at which the mediator will be able to assess the suitability of the parties for mediation and completion of a parenting programme, which is also set to become compulsory.
Courts will be encouraged to use costs orders if people do not make a reasonable attempt at mediation or if they unreasonably pursue an issue.
The MoJ forecast that there would be 24,700 additional mediations each year – 18,800 for child arrangement disputes and 5,900 finances, at a cost of £13.4m per year to the public purse. Up to 19,000 families could benefit.
An impact assessment said “legal services providers that provide advice and representation for family law cases which would be diverted away from the courts by this option could experience a fall in demand”.
But as was common in such impact assessments, the MoJ said “it has been assumed that the legal sector would be able to find other work of similar or next best economic value to reallocate their resources to”.
More positively for law firms’ cash flow, those family law cases that did have to go to court were likely to be resolved more quickly, the MoJ said.
The consultation also asks whether families that attempt other forms of dispute resolution – such as arbitration, collaborative lawyers or lawyer negotiation – should be exempt from the requirement to mediate, and whether any of these services, or any others, should play any further role in the proposed system.
The family mediation voucher scheme – paying for support worth up to £500 – will be extended until April 2025 while a new funding mechanism is considered.
It has so far been used by 15,300 families and an analysis of the first 7,200 users showed that 69% of participants reached whole or partial agreements away from court.
To date, the average amount claimed per voucher has been £430 per family. “However, this has been steadily increasing over time… It is also expected that the cost of mediation will grow over the next few years, in line with inflation and due to the additional demand on the sector.”
The MoJ said this meant almost all families were expected to use the full £500 in future.
Estimates suggest that a quarter of families who have child arrangements settled by judges in the past three years have been to court before. Mediation would save the taxpayer in the long term, the MoJ said, and spare families from “expensive legal bills”.
Further questions asked in the consultation include whether, in the event of a failed dispute resolution, the court should have a new power to make the parties provide a statement explaining what had happened and their position on the material issues at stake.
The Family Procedure Rule Committee is shortly due to consult on a proposal to require people to confirm in writing to the court whether they have attempted dispute resolution, and if not why.
The MoJ is also seeking views on whether more regulation of mediators is required; its preferred approach is to extend the current requirement that only mediators authorised by the Family Mediation Council can conduct a MIAM.
It also asked how the MoJ could support the mediation market “to meet growing demand”.
Lord Chancellor Dominic Raab MP said: “Our plans will divert thousands of time-consuming family disputes away from the courts – to protect children and ensure the most urgent cases involving domestic abuse survivors are heard by a court as quickly as possible.”