Family law cases are now taking longer to resolve than during the Covid restrictions.
The government says mediation is the solution but the removal of 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.
Following the introduction of no-fault divorces the number of divorce applications has grown.
One-fifth of marriage breakups are wrongly ending up in court; the courts are too often being seen as a couple’s first port of call instead of a last resort, because they think that they have legal rather than relationship issues.
Separating couples are now legally obliged to attend a Mediation Information and Assessment Meeting (MIAM) before issuing a court application to resolve a family dispute.
Family law judges have the power to adjourn cases and direct parties to mediation in an attempt to reach an out-of-court settlement before continuing with the case.
But family lawyers say many judges are not robust enough in enforcing this requirement. This requirement 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, there are some cases where 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 but co-mediation, when one mediator is a qualified practitioner and the other a lawyer, is the gold standard of mediation. 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 there are issues involving children and the children themselves 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.