The Government announced on the 23 March 2023 plans to make mediation mandatory in all suitable Family Court cases involving children, save for those which include allegations or a history of domestic abuse. The proposals will be subject to a government consultation for 12 weeks, closing on 15 June 2023.
So, if the plan is passed, what does that mean for you?
Do I have to mediate?
Yes, in a lot of cases, divorcing or separating couples who are parents will have to attempt to mediate before Court proceedings can be issued. Under the current procedure parents do need to have attended a mediation information assessment meeting (MIAM) before proceedings can be issued, however there is no actual requirement for them to attempt to mediate and if either parent chooses not to then mediation is deemed as unsuitable.
What is mediation?
Mediation is a process whereby separated parents meet with a trained mediator to discuss the arrangements for the children in the hope that they are able to reach an agreement amicably. Mediation is not legally binding, but the Court doesn’t want to get involved in the arrangements for the children unless they have to (this is called the No Order principle). Because of this principle, the Court encourages parents to resolve arrangements by agreement between themselves and they do not need to have the arrangements for the children enshrined in a legally binding Order.
It is important to note that mediation is not the same as counselling; the purpose of the mediator is to ensure that conversations between parents remain on track and to provide prompts for discussion points that should be considered – they are not there to try to encourage parents to reconcile. Parents retain control of the process and mediation can often be more cost-effective than correspondence through solicitors.
The Mediation Voucher Scheme
Originally set up during the pandemic to try to drive cases away from the overstretched Courts, the government pledged £1,000,000.00 towards a Mediation Voucher Scheme to support separating parents come to a family-based arrangement as to who the children will live with, spend time with, for how often and when. The government has since increased their contribution towards this scheme, and it is now set to run until April 2025.
Under the scheme parents can use up to £500.00 of funding towards the costs of using a mediator in relation to the arrangements for the children. Parents are also able to use these funds to mediate about the financial arrangements upon separation providing it is incidental to the arrangements for the children.
Do I need a solicitor?
Whilst attending mediation both parents can opt to have solicitor in the background who can provide advice during the process. Mediation can be stopped at any point to obtain legal advice and neither party should be pressured into making any decisions if they wish to speak with a legal representative.
When we, as legal representatives, advise on the arrangements for the children we consider what Order the Court would make if the parents were in proceedings. This means that we can ‘sense check’ the position that you are putting forward, or the one that is being proposed to you, and can advise you on what other points you might wish to raise based on our experience of cases before the Court.
What if we just cannot mediate?
If you cannot mediate or if it just doesn’t appear that mediation is getting anywhere then you will be given a MIAM form; this is the form that you need to present to the Court to issue proceedings. This had previously been seen as a “tick boxing” exercise, however the reforms requiring parents to mediate will ensure that this is no longer the case.
It is also thought that the overhaul could result in a new power to Judges to impose financial penalties in the form of fines if parents do not attempt to mediate or if they act unreasonably and cause harm to a child by prolonging Court proceedings; it is therefore really important that parents do take their mediation sessions seriously and not just as a means to end up in Court.
If you have any questions in relation to the above, or if you require advice on child arrangements whilst in mediation, or before the mediation process has begun, then please contact one of our Family & Divorce Team on 0118 975 6622 in Lower Early, or 01491 570900 in Henley. We offer a fixed fee initial consultation for £100.00 plus VAT.