The Ministry of Justice has indicated that the role of mediation in family proceedings may be extended significantly.

At present, there is a requirement for those who wish to apply for Legal Aid for representation in family proceedings (except in cases of emergency or where there is a domestic violence background) to be referred to mediation, so that both parties can make an informed choice as to whether mediation will be a preferable way of resolving the dispute rather than Court proceedings. This however is an entirely voluntary process.

A person who has no real interest in dealing with the matter other than by way of a contentious application to the Court, may perhaps pay lip service to this requirement and may choose to go no further than the initial mediation assessment appointment.

There is a better take up of mediation in relation to financial issues because there is an incentive for both parties to adopt a process which may ultimately save money and prove to be less stressful.

In my experience there is a poorer take up of mediation in relation to children. The mediation referral tends to take place at the beginning of the case. Feelings can often be very raw and there may well be a reluctance to sit in the same room and engage in a rational discussion with the other party.

The parent who has the children living with them, and is refusing contact, may see no personal benefit in participating with mediation or in doing anything which may hasten the resolution of the issues between them.

The suggestion from the Government now is that mediation be made a compulsory part of family proceedings and must take place before an application is issued with the Court.

This is expected to apply whether or not the participants are intending to apply for public funding.

A person who knows they are not eligible for Legal Aid can choose to make an application to the Court straight away without engaging in any productive discussion let alone mediation.

There is some speculation as to how this would work in practice and whether there has to be a minimum participation in mediation (perhaps measured by the numbers of meetings attended) before it can be concluded that mediation go no further, and the gates of the Court are opened. If so there is of course a danger that a person who has no genuine wish to resolve the matter, would simply go through the motions.

Collaborative Law is another method of resolving issues without an application to the Court. The parties instead of attending before one independent mediator, will have a series of joint meetings with their own lawyers present. Again this is a way of “empowering” former spouses and partners.

Mediation and collaboration cannot of course be an answer to everybody’s problems. There are some instances where mediation would be entirely inappropriate such as in the case of domestic violence or where there are disputed issues as to drug or alcohol consumption or mental health. In such situations the participants would not be on a “level playing field” and mediation would not be the appropriate forum to investigate whether such allegations are true.