Mediation must be voluntary to ensure access to justice

Divorcing couples should not be subject to mandatory mediation, as putting barriers in place to attending court is likely to deny access to justice, the Law Society of England and Wales said today in response to a government consultation.

The consultation, launched in March, is seeking views on supporting earlier resolution of private family law arrangements. In its response to the consultation the Law Society is calling for:

• mediation to not be mandatory in divorce cases
• early advice for all (subject to means testing)*
• support for domestic abuse victims as they go through the court process, which has not been detailed in the government’s proposals

“The family courts are experiencing significant backlogs and delays.** We are pleased the government is seeking early resolution for families,” Law Society president Lubna Shuja said.

“Delays have a detrimental impact on families seeking justice and can mean parents are prevented from seeing their children. This leaves children without the stability they need to thrive.

“The problems facing the family court will not go away overnight, but with a robust framework, early legal advice and greater options for divorcing couples, there is more chance of early resolution.”

Commenting on mediation being mandatory Lubna Shuja said: “We understand the value of mediation in resolving family disputes amicably without needing to go to court.

“We do not agree, however, with making mediation compulsory. No form of dispute resolution should be mandatory. Attendance must be voluntary for it to be effective.

“Most couples try to avoid costly court litigation and delays to resolution. The types of cases that do require a court hearing or court process – and would be impacted by the compulsory mediation scheme – are complex in nature.

“Complexity needs to be considered, otherwise these proposals could risk harm being done to vulnerable people who are legitimately seeking a court hearing.”

Commenting on support needed for victims of domestic abuse Lubna Shuja said: “The Domestic Abuse Act has been a positive step forward in the government improving the protections available for victims.

“While the government has recognised that cases concerning allegations of domestic abuse need to be an exemption to the scheme, these cases cannot simply be removed.

“Domestic abuse victims need to be referred to services that can protect and support them through the court process. This is not detailed in the government’s proposals.”

Notes to editors

* Means testing assesses someone’s financial eligibility to qualify for civil legal aid. Find out more

** HM Courts and Tribunals Services Management Information – March 2022 to March 2023 showed there were 47,700 outstanding private family law cases and timeliness of 45.7 weeks and 13,146 outstanding public family law cases and timeliness of 42.3 weeks.

Read the government’s announcement on proposed family mediation reforms

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Naomi Jeffreys | 020 8049 3928