‘Mandatory’ family mediation and the wider impact on domestic abuse victims
What are the proposed reforms?
Currently, mediation is a valuable tool that parties in dispute are encouraged to use, where appropriate, to resolve family related issues (such as separating marital assets and child arrangements) to avoid issuing costly and lengthy Court proceedings. Prior to commencing Court proceedings in relation to financial or children matters, the applicant must attend a MIAM (Mediation Information and Assessment Meeting) to consider whether mediation is appropriate. This attendance is subject to various exemptions and going on to engage in mediation is not compulsory.
A key factor for mediation to be successful, is that it is voluntary in nature. However, whilst in office, Dominic Raab proposed to make mediation mandatory before an application can be made in private law children and contested financial remedy cases. The Ministry of Justice issued a consultation on the proposed reforms earlier this year, which closed on 15 June 2023. The Family Mediation Council published their response, citing their support for non-court dispute resolution on 16 June 2023, but raised their concerns about the implications of making mediation compulsory for separating couples. The Government is yet to respond to the consultation process.
Under the new proposals, if mediation is not engaged with without a valid exemption, the Court will be able to order parties to mediate and even impose financial penalties to incentivise this further. The proposals sell this reform as beneficial to children, as Court proceedings are detrimental to their well-being. But mediators and family law practitioners alike have largely expressed concerns that the proposals are not congruent to the nature of successful mediation. Some commentators fear that this is merely a ‘plaster’ to avoid addressing the bigger issue – that the Courts are severely underfunded and thus facing inordinate backlogs that render already difficult circumstances for Court users increasingly delayed and costly.
The Government issued a time-limited £500 mediation voucher scheme in March 2021. The scheme was designed to encourage parties disputing child arrangements (or financial mattes where there is also a dispute relating to a child) to mediate and therefore alleviate the Courts. This scheme has been praised by all stakeholders and has successfully increased the uptake of mediation. However, the proposed legislative reform which introduces a ‘mandatory’ status to the mediation requirement has been met by many experts in this field with scepticism and concern, particularly for victims of domestic abuse.
What are the concerns?
Mediation, by its very nature, must be entered into on a voluntary basis for the practice to have any hope of success - parties need to be willing, and able, to negotiate fairly. The Law Society and Resolution have both expressed concern about mediation being made mandatory. The predominant concern spectators share is the result of the proposed legislative reform on victims of domestic abuse. It is well understood that abusers can look to use processes such as mediation to perpetuate their abuse.
The proposed reforms caveat that domestic abuse victims will still be exempt from engaging in mediation. In the same vein, mediators will continue to carefully screen parties for signs of domestic abuse, coercion or control through a series of questions asked to each party individually. Yet, the question remains, will this be sufficiently rigorous to ensure that no one slips through the cracks?
What do the experts think?
Nicole Jacobs, Domestic Abuse Commissioner for England and Wales, spoke at the Commons Select Committee Panel on Monday 19 June 2023. She confirmed there is risk, as many fear, that, ‘domestic abuse is often not something that you can readily ascertain in a first conversation’ and ‘there are huge implications if you miss it’.
The committee chair, Sir Robert Neill, attempted to dispel these concerns stating that ‘the vast majority of private family law cases are unlikely to involve allegations of domestic abuse.’ However, Nicole quickly reminded the Chair that there may very well be problems with how we record incidences of domestic abuse, and that smaller studies show that domestic abuse of some form is alleged in upward of 60% of cases.
Largely, we rely on a system of self-reporting to flag domestic abuse – but those who work in this field are all too aware that victims, by virtue of the abuse they have suffered, often feel unable to self-report or are even unaware of the extent to which their ex-partner’s behaviour has affected their ability to advocate their own best interests. Domestic abuse is not limited to physical violence, but also encompasses emotional abuse, psychological abuse, coercion and control. Abuse operates on a spectrum – so where a victim has suffered comparatively ‘lesser’ abuse deemed as insignificant to the individual, they may not feel able to bring this to a mediator’s attention during an initial assessment.
The standard Court process affords clear protection to victims of domestic abuse through use of separate waiting rooms, screens in hearings, and of course the presence of a Judge to deliberate the case. Despite the obvious concerns, the Government is eager to press on with the legislative reform in its (limited) efforts to redress the underfunded Court system. In this unfortunate reality, real time and careful consideration ought to be given as to how best to protect victims of domestic abuse in these circumstances. I would hope to see the Government spending more time exploring the concerns Nicole Jacobs has raised that they must ‘seriously consider much of the language that orients us to mandatory’.