From April separating couples must assess whether mediation would be a better way of resolving their disputes than battling over them in court, Justice Minister Jonathan Djanogly announced today.
Anyone setting out to contest the terms of their separation in court will first be required to consider mediation, under a new protocol agreed with the Judiciary. This usually takes place through one mediation awareness session, where both parties find out what the process can offer before they decide if it is right for them, and replicates the system already in operation for couples granted legal aid. It will not apply to couples not planning to contest their terms in court.
Mediation is often quicker, cheaper and less confrontational than going to court. Research shows it can cost a quarter of the price and take a quarter of the time of going to court, and with two thirds of publicly funded mediation already resulting in full agreement it can ensure better results for families too.
For couples who have decided separation is the only course of action, mediation means they can decide the terms of their split between themselves, helped by a trained and impartial mediator, rather than fighting each other through lawyers, with a judge making the key decisions which will shape their lives.
Jonathan Djanogly said:
‘Nearly every time I ask someone if their stressful divorce battle through the courts was worth it, their answer is no. Mediation is a quicker, cheaper and more amicable alternative, particularly where children are concerned.
‘Mediation already helps thousands of legally-aided people across England and Wales every year, but I am concerned those funding their own court actions are missing out on the benefits it can bring. Now everyone will have the opportunity to see if it could be a better solution than going straight to court.
‘Currently many people repeatedly go to court to argue over matters they are better placed to sort out themselves - like securing 30 minutes extra contact time or varying their allocated contact days. This is expensive and emotionally draining for all concerned. Parents are best placed to resolve these types of issues and mediation can help them do this.
‘Of course, I know mediation won’t be right for everyone. It won’t suit some people, who should be free to explore other avenues including court, or for those in serious or dangerous circumstances, for examples in cases of domestic violence or child protection. They will not be prevented from progressing straight to court.’
The requirement has been added to the Family Proceedings Rules and will come into effect from 6 April. It will require the person initiating the case to first go to a professional mediator, who will engage the other party and arrange a mediation awareness session to explain the process to the couple - either together or individually. They will be required to present evidence of this before their case will be accepted by the court.
Undertaking a mediation awareness session provides couples who are splitting up with the chance to talk about their situation in a less hostile environment, acknowledge their problems and consider options for resolving them. As part of this process the trained mediator will also undertake domestic abuse screening, help the couple assess their dispute, discuss the benefits of mediation and help them decide if it could work for them.
If both parties choose mediation, they will continue down that route. However if the mediator or either party feel that mediation will not be suitable in the individual case, or there is a risk to anyone’s safety, they will be exempted and the case can continue towards court.
In serious circumstances - such as allegations of domestic violence or child protection - there will be no requirement to access mediation and the case will progress straight to court.
National Audit Office figures on legally-aided mediation show that the average time for a mediated case to be completed is 110 days, compared to 435 days for court cases on similar issues. Mediation is also often cheaper than going to court - data from Legal Aid cases show the average cost per client of mediation is £535 compared to £2,823 for cases going to court.
Practice Direction 3a - Pre-application protocol for mediation information and assessment
Notes to Editors
The new Pre-application Protocol and Practice Direction will supplement the Family Proceedings Rules to come into effect on 6 April 2011. The Proceedings Rules are drawn up by the Family Proceedings Rules Committee which is chaired by the President of the Family Division. More details on the Committee
- A Family Justice Review Panel is currently considering mediation as part of its terms of reference for its review of the family justice system. The Panel will publish its interim report at the end of March.
- Key Mediation Facts and Figures:
- Mediation can take a quarter of the time of going to court. The average time for a mediated case to be completed is 110 days compared to 435 days for non-mediated cases. (Source: NAO Report on Legal Aid and mediation, March 2007);
- Mediation is often cheaper than going to court. Data from Legal Aid cases show the average cost per client is £535 compared to £2,823.
- Official figures for legally-aided mediations have risen from 400 per year in 1997 to almost 14,600 in 2009/10, with around two thirds of publically funded mediation resulting in full agreement. Advice on divorce or separation
- For more information, contact the Press Office on 020 3334 3536.
Photo courtesy of National Family Mediation.