From Court to Mediation- Is the cultural shift away from the court accelerating ?

John E Hind
Categories: Divorce and mediation, Family mediation, general, News, Uncategorised

Accelerating the cultural shift away from court

Government proposals are set to steer families away from stress, costs and delays

New government family law proposals could accelerate a cultural shift for separating couples away from family courts, says The Family Mediation Council (“the FMC”).

“Too many separating couples currently see a default position of taking their dispute to a family court, with all the costs, stress and delays that involves,” says John Taylor, Chair of the FMC.

The cultural shift

A cultural shift away from court based solutions, for separating couples, has been taking place for quite a few years now but is certainly gathering pace, as the pressures on the court systems and public purse have increased, galvanising the Government policy machines into action.

The ultimate outcome and aspiration of Government and, I would say, Society is and should be for separating couples to consider ‘out of court resolution’ (and particularly mediation) as the first step.

There is still a long way to go to achieve this outcome with the main barrier being one of understanding, truly understanding, what mediation involves and offers separating couples and their families, in the right hands with the right motivation, assessment, preparation and support.

Although it is becoming less common, some couples still liken mediation to counselling/therapy, telling me that they have no wish to ‘get back to together’, completely misunderstanding the principles, process and purpose of mediation.

Most couples I speak to do not want to spend months and £1000’s going through court to solve their differences but often struggle to see, initially anyway, how they are going to cope and manage any other way given certain behaviours they are experiencing from each other (leaving each of them feeling disempowered for a range of reasons and feeling the need to redress this for themselves through a range of defensive and often aggressive behaviours)

Mediation is, at its heart, a process of ‘collective reasoning and decision making’, in which couples attempt to (with a range of support) resolve a range of differences and reach solutions for themselves, with all the accompanying benefits of being able to do so

The Carrot and Stick approach

Government is essentially proposing a ‘carrot and stick’ integrated strategic package of measures to speed up this cultural shift away from court based solutions towards out of court processes including:

Compulsory Pre-mediation meetings (MIAMs)

Compulsory pre mediation sessions (compelling separating couples to discover, understand and make informed decisions)- The accountability Stick

Costs orders

Costs orders for a failure to make ‘reasonable attempts’ to settle differences – An argument about ‘Unreasonableness’ is likely to add to the court based battleground, adding to the list of issues for the Judge to resolve in cases where many parents may be self represented because they cannot afford professional advice and support, let alone the burden of cost orders- The Stick

Financial incentives

£500 Vouchers for separating couples for choosing mediation to resolve their differences and find solutions together. This is being extended for a further period- The Carrot (The Nudge)

We all know that we (humans) respond best to support, encouragement, motivation and empowerment rather than compulsion and punishment.

Who likes to be told what to do !

That said, I think we all have a responsibility, from the outset, to do our best to approach the challenge of separation with an open, curious mind, researching the options available to us, making informed decisions for ourselves.

If we do not, is it right and reasonable that we can tie up court time ( a public resource) without adverse consequences to ourselves (accountability), save in situations that merit the court’s time?

If we do not take responsibility for ourselves can we be surprised that the privilege of being able to decide for ourselves whether we go to court or use mediation (self determination) is, to some extent, removed from us, especially where one of the results of not taking responsibility is the use of a very expensive and limited resources, court time, often required for more urgent and, quite frankly, deserving causes.

The Future

I think we will see many more separating couples going down the mediation route over the coming months and years, even if not initially their preferred choice.

On the downside, I think that we may also see more unsuitable cases being mediated unsuccessfully such as in those situations where no level of professional support is sufficient to facilitate the necessary shift in mindsets and behaviours required for the mediation process (collective reasoning) and long term constructive (not destructive) co-parenting)

However, on the upside, I believe that we will see many more separating couples, who would otherwise not have chosen an out of court process such as mediation but who decide to and go on to reach successful outcomes. After all, couples don’t know what they don’t know, until the try it.

As if we need proof of this, a recent analysis of the first 7,200 users of the Government Voucher scheme for mediation shows 69% of participants have reached whole or partial agreements away from court.

Next steps

Let’s all do what we can to continue this shift away from the courts. Here is a consultative process we can all get involved in.

GOV.UK

This consultation seeks views on the principle of proposed amendments to the existing Family Procedure Rules and supporting Practice Directions.

The proposals are intended to strengthen the existing provisions around attendance at Mediation Information and Assessment Meetings (“MIAMs”) and to encourage more people to attend mediation or other forms of non-court dispute resolution (“NCDR”).

The consultation will run from 30 March 2023 until 25 May 2023.

Early resolution of private family law arrangements – GOV.UK (www.gov.uk)

fprc-consultation-foreword.pdf (publishing.service.gov.uk)

fprc-consultation-document.pdf (publishing.service.gov.uk)

FPRCSecretariat@Justice.gov.uk