Possible Fines for Refusing Mediation

Possible Fines for Refusing Mediation

The BBC have reported that separating couples could face fines for refusing to try mediation under new proposals by the government.

The proposed changes have been brought about by the heavy backlogs faced by the family courts. It would seem that this is in part caused by delays due to Covid-19, along with a large number of divorces now being processed under the no-fault divorce system which was introduced almost a year ago. Whilst the divorce process itself is now straightforward and, for the majority, a paper-based application, the increase in divorces in turn means that there are more people dealing with matters on separation such as children and finances. These are the issues which often lead individuals to apply to court for a resolution.

What is the current position

At the moment, in terms of resolving financial issues or child arrangements , broadly speaking the options are:

1. Direct agreement

2. Mediation

3. Negotiations with the help of solicitors

4. Court proceedings

Our advice to individuals who are separating and needing some help to navigating the waters would always be to try to resolve matters directly, or through mediation as one of the first options if it was suitable and appropriate in the circumstances.  

There is no obligation for parties to engage in mediation at this moment in time.

Currently, for those who are unable to resolve matters and are applying to court, they are required to produce a ‘MIAM’ form.

MIAM stands for Mediation Information and Assessment Meeting, and it is essentially a short meeting in which a mediator will have discussions with the individuals (either together or separately) to set out their circumstances and talk about what mediation involves and how it could be used to resolve the issues.

In order for an application before the court to be processed, an individual would either have to:

• state that they are exempt to obtaining a MIAM, due to either domestic violence, urgency, previous MIAM attendance or exemption or a few other limited reasons, or

• attend a MIAM and a mediator will need to complete a form for the court (this is what happens in the majority of cases)

The mediator will sign a form to say either one of the following:

• The applicant attended a MIAM

• The applicant and respondent attended a MIAM together

• The applicant and responded attended a separate MIAM

• The applicant attended a MIAM and the respondent is attending a separate one.

Whilst the court therefore require a level of compliance with engaging in a MIAM and having a certificate signed by a mediator (except for those with an exemption), there is no obligation to try mediation.

What are the proposed changes

What the article sets out is that the government are proposing compulsory mediation. The proposals include financial support for mediation, being a part-funded voucher of £500, which would probably cover around half of the fees in most cases.  

It is reported that the government are undergoing a 12-week consultation, and so far “more than two thirds of the first 7,200 users to be supported by the scheme “reached whole or partial agreements away from court”, according to the department.”

Whilst the headline sets out that couples could face fines, the article does not make clear what the fines would be for not engaging. We predict that this information may come to light further on into the consultation.

Overall, the article seems to clearly demonstrate that the government is looking to deter couples from becoming engaged in court proceedings where it can be avoided.

Potential implications

As with anything, there are clear advantages and disadvantages of this approach.

One of the obvious advantages is that it would (hopefully) reduce the amount of cases going through the courts, which would save time and costs for the individuals involved. Another consideration is that compulsory mediation would help to give both parties a better understanding and appreciation of the process before they are thrust into proceedings (sometimes without any notice or control of the situation). Our Mediator, Honor Giles, has previously written a blog on mediation and the benefits.

However, not every case is suitable for mediation which is one of the pitfalls that stands out to us. It will be interesting to see how the government approaches this, and what options are available to those people who aren’t able to engage in mediation – such as those who would be caught under the exemptions which currently exist for MIAMs. It would also be difficult to know how the courts would monitor this, as for now the option to say that you are exempt to a MIAM is merely a tick box exercise.

One of the exemptions would likely need to be those who are suffering from abuse.  The BBC article states that Richard Miller, the Law Society’s Head of Justice, set out that mediation was “absolutely vital” in many cases, but in situations where there was an “imbalance of power”, it could lead to “unjust outcomes”.

There is also no guarantee that mediation will be successful, and it may be that people are left feeling dissatisfied if the outcome is not positive.

Our view

The proposed incentive for mediation would definitely seem an encouraging step from the government in terms of looking to reduce the acrimony that can be involved in issues on separation, and we are pleased to see that the government are acknowledging the backlog and pressure currently faced by the family courts.

Our advice will continue to be to those who are suitable for mediation, to try it in the first instance, before becoming engaged in protracted proceedings.

If you would like to find out more about mediation or how best to resolve your issue, please do not hesitate to contact our office for an initial chat to provide further information about your options.