Supporting earlier resolution of private family law arrangements – Law Society response

We've responded to a government consultation about supporting earlier resolution of private family law arrangements through alternative means – such as mediation – to free up space in the courts.

More parents and carers are using the courts to make child arrangements than ever before. Coupled with the pandemic, there are now increased waiting times for cases to be completed.

The government has already invested in the system to increase the amount of sitting days that judges have, and into new technology. Despite this, wait times continue to grow.

To combat this, the government believes that families should be provided access to other avenues, such as mediation, to free up time in the courts. This does not include cases involving domestic violence or child protection concerns.

The consultation sought views on how the government can best progress these plans and build upon their work on their Mediation Voucher Scheme.

Specifically, the consultation asked for views on:

  • mandatory shared parenting programmes for separating parents
  • how information about court disputes should be provided to parties
  • the role of mediators, mediation and exemptions
  • funding and costs

Our view

We are supportive of the government working to improve the system to assist families with getting faster resolutions. We understand the huge value of mediation in resolving family disputes amicably and without needing to go to court.

However, we do not agree with a scheme that would make mediation compulsory. Although the consultation does not consult on whether compulsory mediation should go ahead, our position is that no form of dispute resolution should be mandatory.

For mediation, or any other form of dispute resolution, attendance needs to be voluntary for it to be as effective as possible.

The choice of a court hearing is vital in ensuring access to justice and we do not agree that barriers should be put in place if attending court is the preferred course of action for parties.

We are also concerned that:

  • the proposals may put vulnerable people at risk, such as victims of domestic violence
  • the proposals may put barriers on access to justice
  • there is a lack of evidence to back the proposals
  • evidence will be scrutinised by court staff, rather than by judges

Our recommendations

We recommend that legal aid should be:

  • increased for private family law cases
  • expanded for early legal advice
  • available for more non-court dispute resolution options

We also recommend that:

  • the proposals should be robust enough to protection vulnerable people
  • the Ministry of Justice should collect better data

Next steps

We look forward to being involved in any further consultation and can offer to convene further insight from our members who have the practical and lived experience of putting such proposals into practice.

Should you have any further questions, contact Sarah Richardson.