Will investment in mediation help save the family courts?

Every relationship is unique, as are the reasons marriages break down. Often the end of a marriage is the cumulative result of a combination of factors felt by both parties, rather than the deliberate actions of just one. In those circumstances, it can often be the case that the parties focus on fault and blame and destroy what’s left of the relationship at a time when cooperation is needed most.

The aim of no-fault divorce was to simplify the divorce process and cause less harm to relationships. However, for some people, apportioning blame can feel just and a way to hold an ex-partner accountable for wrongdoing. For example, in cases where one partner committed adultery, or was abusive, the no-fault based divorce process provides a way for them to divorce without the partner at fault accepting responsibility.  That being said, divorce is difficult enough without the need to assign blame, which ultimately only makes things more difficult.

What has the introduction of no-fault divorce changed?

The introduction of no-fault divorce has meant:

  • you no longer need to agree which one of you should be “blamed”;
  • you don’t need to air the sensitive details that led to the end of your marriage;
  • the need to gather enough unpleasant behaviour to qualify as “unreasonable” is avoided;
  • respondents can no longer contest the application (although there are some reasons why a divorce can still be challenged in court, for example the marriage is not valid);
  • conflict is reduced, and couples are better able to move forward;
  • domestic abusers cannot contest divorce, effectively trapping their spouse;
  • relationships are more likely to be amicable between parents post-separation, creating a more positive home environment for children;
  • couples no longer have to wait 2 or 5 years to evidence prolonged separation, allowing them to move on sooner.

As before, no divorce and dissolution applications can be made during the first year of marriage.

With the advent of no fault divorce, it is very much hoped that couples going through relationship breakdown will be more committed to any process available which paves the way for amicable collaboration rather than conflict and stress. This helps reduce the mental health impact of separation and ease negotiations, and is the favoured option. It means parties can find a way to move forward positively, and focus on the central issues, such as their children, finances, and property. 

Why mediation?

There are several reasons why mediation ticks all these boxes, reduces conflict, and helps couples avoid the family court.

  • Mediation is conducted by a neutral third party – having a third party facilitate discussions can help keep lines of communication open at a time when parties are in conflict.
  • Both parties involved in the process are accountable for their decisions. The mediator is not responsible for making the decisions, and they cannot force an outcome on the parties like a judge can.
  • Mediation can save you time and money – often mediation is cheaper and quicker to achieve an outcome than court proceedings.
  • Mediation is flexible – parties can deal with multiple issues during mediation, whether finances, children or isolated one-off issues.

In March 2021, the Government announced it was investing a further £1.3 million in the UK Family Mediation Voucher Scheme. The scheme was originally launched in March 2021, and the government has now invested £8.68 million in it. Those who qualify for the scheme can receive a financial contribution of up to £500 towards the costs of mediation. The announcement of further funding means that an additional 2,440 vouchers will be available to separating families to access mediation services. This should help keep more families out of court and avoid costly, elongated and often toxic proceedings, which have been shown to have harmful long-term effects on the children involved.

The scheme is available to couples who have:

  • a dispute relating to a child;
  • a dispute regarding family financial matters that also involved a dispute relating to a child;
  • attended a mediation information and assessment meeting (MIAM).

The government’s assessment of the success of the scheme is that it has led to cases settling that may have otherwise gone to court: it actively helps some couples avoid litigation. This supports the most recent statistics we have from the Family Mediation Council. The results of the survey they published in January 2020 showed that mediation was a highly effective means of dispute resolution and was successful in over 70% of cases. For the benefit of the couple and their family, there are other compelling reasons why it is crucial to keep as many families as possible out of court.

An overburdened court system

Official family court statistics for January to March 2021 revealed that 71,707 family cases were started — up 7% on the same quarter in 2020. The rise was due to a 29% increase in financial remedy, 15% increase in domestic violence, 5% rise in private law children cases, 2% rise in matrimonial and 1% rise in adoption cases. The number of public law cases starts decreased by 7%.

Care and supervision cases took an average of 43 weeks to conclude, up 8 weeks on the same quarter in 2020, and well above the required 26 weeks. Only one in five cases was disposed of within 26 weeks, down 14% on the same period in 2020.

The family court system is close to, if not already at, its breaking point. The statistics concerning care and supervision cases are frightening. It is crucial that we take steps to allow the family courts to have the resources needed to deal with urgent cases where there are safeguarding concerns for children and/or families at risk of domestic abuse. In the absence of such change, there will likely be tragic and unnecessary victims due to the current state of the family courts and their inability to access the court system in time.

Due to much campaigning over several years to successfully bring about no fault divorce, and a family law community committed to helping their clients find constructive and non-confrontational approaches to dispute resolution, there is a changing approach to settling conflict in divorce in the legal system.

Investment in mediation, arbitration and private financial dispute resolution hearings to become frequently used and more favourable alternatives to court and the one solicitor–one couple model, are clear indicators of changes in society’s attitude to a more amicable and holistic approach to divorce that focuses on the wellbeing of all involved. 

Most people do not like or want to be in conflict, but the court system is an adversarial system. It is set up to pit people against each other at a time when it is important to work together. Continuing to strive to find alternatives that support collaboration is key to the long-term health and success of the family justice system.

Amanda Phillips-Wylds is Managing Partner and Head of Thames Valley at Stowe Family Law.

Photo by Toa Heftiba on Unsplash.