HMCTS, and the family courts in particular, should be commended for their efforts in re-opening the courts allowing the public access to the family law court system, however, we cannot ignore the long-lasting ramifications of the pandemic which has resulted in a backlog of cases that continue to mount. The court backlogs pose a significant risk to the rule of law and to access to justice therefore it is time imperative to consider alternatives to the court process.
Given the enormous amount of pressure on the court system, it would be reasonable to suggest that a greater role for mediation in advance of court proceedings is considered and to introduce a requirement for compulsory mediation before court proceedings are commenced.
At present, before making a relevant family application, the prospective applicant must attend a mediation information and assessment meeting (MIAM) unless an exemption or a mediator's exemption applies. However, it is important to note that the requirement to attend a MIAM is not a requirement to participate in mediation. As such, consideration needs to be given to whether it should be mandatory to attend and engage in mediation before a prospective applicant is able to start court proceedings thus reducing further work for an already overloaded and burdened court system.
Mediation offers several advantages compared to court proceedings such as:
Speed - the parties are in control of the speed at which mediation progresses. They can schedule sessions in quick succession to speed up the process.
Saving costs –parties tend to share the mediator's costs between them, often meaning they are primarily paying for just one professional rather than one each. The process can also be streamlined to save costs generally.
Party autonomy – the parties decide on what terms they will settle.
Preserving better relationships – the process is far less acrimonious than court proceedings.
Confidentiality – the process is entirely confidential and all discussions around possible settlement options are without prejudice.
Flexibility – the parties have greater control over the process and can decide how they wish to deal with certain issues.
Creative outcomes - parties can consider wider issues and consider personal interests that are unique to them.
Lasting settlement – mediation involves exploring various settlement options. The thorough assessment and feasibility of each option means that a mediated settlement has a greater chance of being obeyed.
The requirement for compulsory mediation will not only alleviate the pressure on the court system but also give people an opportunity to resolve their issues on their own terms without having to litigate the matter and incur the expense and delay that is at times brought by court proceedings. Until pre-action compulsory mediation is implemented, there is a possibility that the court system will continue to struggle in the meantime.
If you find yourself in a family dispute, we encourage you to consider resolving the dispute through the mediation process and our specialist family law team can assist you in this regard whether offering mediation or supporting you through the mediation process via a third-party mediator. Please do not hesitate to contact us should you require our assistance.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.