In its March 2023 consultation, the Ministry of Justice (MoJ) proposed making mediation mandatory for separating couples prior to making a court application, supporting earlier resolution of private family law arrangements.
Issuing its official consultation response last week, however, the MoJ abandoned mandatory mediation and announced a pilot on legal advice specifically designed for parents and carers having difficulties agreeing their child arrangements.
The MoJ will also extend its private law Pathfinder pilot to South-East Wales and Birmingham, and roll it out to all courts nationally. Pathfinder, launched in 2022, facilitates information-sharing between police, local authorities, courts and other agencies, and it allows judges to request more documentation before a case gets to court.
Welcoming the about-turn, family lawyer and NLJ columnist David Burrows said: ‘To force parties to mediate is illogical.’
Peter Burgess, partner at Burgess Mee Family Law, welcomed the return of early legal advice, which, he says, ‘was swept away with the LASPO [Legal Aid, Sentencing and Punishment of Offenders Act 2012] reforms ten years ago.
‘Early legal advice has to be a vital part of keeping family conflicts out of court and easing the burden on judges, who often have to explain the law to litigants in person. It remains to be seen exactly how this scheme will be implemented or who will be eligible, and there will be a long, hard road ahead to rebuild a family justice system which is fit for purpose once more.’
Resolution committee member Jo Edwards, head of family at Forsters, said: ‘There is plenty of evidence to show the connection between couples receiving early legal advice and resolving issues on separation, in turn freeing up court time for the most needy cases (involving safeguarding issues or vulnerable people).
‘Mediation can be extremely effective, but it’s not right for every couple and works best when it is entered into voluntarily. The proposals also risked making victims of domestic abuse feel that they had no option but to go into mediation.’
Deborah Jeff, partner, Simkins, said: ‘It is eminently sensible that the government has listened to the feedback of solicitors and mediators. Parties must come to mediation feeling safe and with parity of power.’
Law Society vice president Richard Atkinson said: ‘Having the conversation early could mean a dispute is settled sooner.’
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