Family law cases are taking longer to resolve than during the Covid restrictions.
The government says mediation is the solution, but removing legal aid for most private law family cases means many couples are not even aware it exists. Legal aid cuts have also increased the number of couples without lawyers and have led to increased delays.
Children who face being placed in local authority care now have delays of a year, and it may take three years to return to pre-pandemic levels.
The number of divorce applications has grown after the introduction of no-fault divorces.
One-fifth of marriage breakups wrongly end up in court; the courts are too often seen as a couple’s first port of call instead of a last resort because couples think they have legal rather than relationship issues.
Separating couples are legally obliged to attend a Mediation Information and Assessment Meeting (MIAM) before issuing a court application to resolve a family dispute.
Family law judges can adjourn cases and direct parties to mediation to reach an out-of-court settlement before continuing with the case.
However, family lawyers say many judges are not robust enough to enforce this requirement, which is often ignored.
While the government has introduced a mediation voucher scheme to pay towards the cost of mediation, cuts to legal aid caused the take-up to fall. This has caused the levels of MIAMs, mediation and out-of-court agreements to fall by half.
The government is now being urged to restore legal aid.
Of the couples who do use mediation, 65% reach whole or partial agreements,
However, in some cases, going to court is the right way forward. For example, where there are allegations of physical, sexual or financial abuse.
In contrast to court, mediation is less stressful as parties are not cross-examined. It is confidential, flexible, cheaper and faster. The parties are encouraged to look ahead rather than back. Mediation also enables a couple to reach an agreement that they can each live with instead of handing over control to a judge.
There is a common misconception that it is only possible to mediate easy cases. Still, co-mediation is the gold standard of mediation when one mediator is a qualified practitioner and the other a lawyer. These factors increase the likelihood of a successful outcome.
Shuttle mediation – in which the parties are in separate rooms and do not have direct contact with one another, and the mediator moves between them – offers safety in cases involving allegations of abuse.
Child-inclusive mediation can work well when issues involve children and the children wish to have a voice.
The downside of mediation is that there is no certainty of resolution, and without a court order, any agreement is unenforceable if one party changes their mind.