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Changes to the family courts

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Today, the family justice system gets a major reboot to make it more streamlined and efficient. Much of the changes are concerned with how the courts that make up the system are re-organised and re-designated.

This is big news among family lawyers like myself but I don’t expect the public to get quite so animated about changes to hearing procedures and the reformatting of legal forms.

But there is one very important change that is it worthy of more widespread comment. From today, it will be compulsory for anybody taking legal action against their former partner to have first considered family mediation before being allowed to file papers at court. This applies to court action over child arrangements and contested finances such as property and pensions.

On the surface, this makes a lot of sense. Family mediation is a highly effective option for helping parties in conflict reach an agreement they’re each prepared to abide by. Government data tells us that over two-thirds of people that began publicly funded mediation in 2012/13, went on to reach agreement. Mediation is also a relatively quick and cost effective option when compared to more expensive lawyer-led options or being represented at court.

For many working in the family justice system, the requirement to meet with a mediator before being allowed to go to court cannot come soon enough. Since legal aid was largely withdrawn from family lawyers a year ago, the family courts have seen an explosion in the number of people representing themselves.

Data secured under the Freedom of Information Act reveals that in November and December 2013 over half (52%) of all parties attending court proceedings about child matters were unrepresented. This is unprecedented. Moreover, the same data reveals that between April and December 2013, family courts across the UK were having to deal with a third more unrepresented parties, compared to same period in 2012.

This is causing delays for all court users since someone who isn't properly represented is entitled to receive additional help from the judge for which there is not adequate court time available. It means delays for resolving cases relating to child contact and residency.

Something clearly must be done is the mantra coming from government. And while there are exemptions from being required to consider mediation – most notably evidence of domestic abuse – the courts now have the power to refuse any application that does not contain a form saying mediation has been considered.

But will the siren call from government to “mediate, not litigate” actually work?

I have my doubts. Mediation is effective because it is a voluntary process where both parties perceive some benefit will result from the process. But in almost 40 years of mediation being available in the UK, this is not how most separating couples have come to view it.

This is not surprising. At a time of separation, emotions can run high. There are some people who are simply too distraught to sit in the same room as their ex-partner. Overall, I think it’s more a case of people wanting to feel safe, supported and informed when making hugely important decisions about their family’s future. This is the flip side to the mediator staying impartial: he or she cannot provide any legal advice or tell either party what they should do.

Suffice to say standalone mediation does not sell. Witness the huge drop in publicly funded mediation since April 2013. Despite the government retaining legal aid for mediation and promoting it hard, the number of mediations getting underway across the UK between April and December 2013 fell 40% year-on-year.

As a lawyer and a mediator this concerns me. Crowded courts and underemployed mediators are symptomatic of the urgent need for family law services to be more affordable.

People should absolutely be able to access the advice they need at a time of separation. How else will they be informed about their circumstances and the options available to them? But those options need to be both compelling and affordable.

Which is why my law firm - alongside thirty others - have come together to form a regional network of professionals offering a new approach called lawyer-supported mediation. It’s not rocket science: as a lawyer, I can provide any client willing to consider mediation with a fixed fee service covering all the advice & support they need to reach informed agreement at mediation. And by acting in the capacity of legal adviser, I’m suddenly far more affordable to a great many more clients who hitherto considered purchasing legal advice too daunting a prospect.

So while I agree with government that more needs to be done to keep families from the courts, any alternative must satisfy peoples’ needs. All other considerations are secondary. 

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