The Family Court in England and Wales has been experiencing significant backlogs in recent years. The Family Court deals with many of the key issues affecting families, to include divorce and dissolution, the division of matrimonial/civil partnership finances, child arrangements between parents (to include stepparents and grandparents), care proceedings and domestic abuse injunctions.
With delays and disruptions exacerbated by the pandemic, and a decrease in the resources available, contested family matters in all these areas can now take much longer to be resolved through the system.
Mandatory mediation was one of the avenues explored by the Government to address the delays, which are recognised to have a detrimental impact on separating families. Ultimately, the Government introduced a scaled back version, which will be explored further below. This leaves the question of whether mediation initiatives, to include mandatory mediation, are what the Family Court in England and Wales needs to solve the backlogs?
The backlog in the Family Court
The main reasons for the current backlogs with the Family Court are:
- COVID-19 Pandemic:Pre-2020, the Family Court system was heavily reliant on paper. Court documents were prepared on paper and posted into court buildings, and hearings took place in these buildings with all parties in physical attendance. As such, when the pandemic hit, it initially caused significant disruptions in the Family Court. This included court closures and delays in hearings, as well as delays with external agencies that the court relies on, such as Cafcass. These issues contributed to the accumulation of cases. Whilst the Family Court did quickly adapt to the constraints of the pandemic, for example through the introduction of remote hearings and with some courts sitting outside of usual hours to clear backlogs, the system has still not recovered.
- Increase in Case Volume: Data from the Ministry of Justice shows that, between 2018 and 2023, the estimated number of applications made to the Family Court has sat consistently above 260,000 per year. The last time applications had exceeded that number was in 2013. The year of 2022 saw the highest number of applications made since the data period commenced (2011) with a total of 269,876[1]. For financial remedies applications, Baroness Carr, the Lady Chief Justice, reported a 9% increase in applications in the year to March 2024 when looking at the previous year, and a 7% increase in the number of those cases which were contested and therefore required more court time.
- Increase in Case Complexity: Alongside the increasing number of cases before the Family Court, there is also a requirement for more time to be given to certain issues. For example, advances in private children law mean that in cases where there are allegations of domestic abuse, the court will often want to look at the whole course of dealing between separated parents to work out if domestic abuse is a relevant factor, rather than focusing on a set number of specific incidents. This can require more of the court’s time to resolve, further adding to the backlogs.
- Lack of resources: A lack of funding for the Family Court over the years alongside increasing costs has resulted in a shortage of judges, legal aid, and court staff. All this combines to make it difficult to handle the growing number of cases efficiently. Baroness Carr has expressed grave concern about the situation to MPs, noting the Ministry of Justice as “one of the most underfunded departments”, and noting a particularly difficult situation in Taunton where, due to resources, only one courtroom could operate for the first few months of 2025, with only 60 sitting days (days when the court can hear cases) to hear 73 scheduled cases.
To put these issues in context, data from the Ministry of Justice shows that the average time between an application being first processed by the court and dealt with by way of a final order has steadily increased from 30.1 weeks in 2013, to 45 weeks in 2023. In a decade, therefore, we have seen an increase in the average length it takes to resolve private family law matters of just under four months. Similarly, statistics for care proceedings show the average length to resolve cases far exceeds the 26-week period deemed by the Government as appropriate. These days are not insignificant, particularly where they impact on the lives of families and children. They have therefore led the Government to consider what can be put in place to resolve the issue.
Is Mandatory Mediation the answer?
What is mediation?
Mediation is an alternative to court where the parties to a disagreement can try to resolve their issues, with the help of a neutral mediator. A mediator will not take one side or the other nor can they tell the attendees what the outcome should be. Their role is to provide guidance on the family law principles and then facilitate conversations between the attendees in the hope they can reach an agreement. Mediators can be legally trained, but they do not have to be.
Mediation can take place in different forms. It can be in-person, with the attendees and a mediator all sitting in a room with one another, or it can take place remotely via Teams or Zoom. Mediation can take place on a shuttle basis, with the attendees sitting in different rooms and the mediator going between the two to try and facilitate an agreement. There can also be solicitor-assisted mediation, where solicitors attend mediation alongside their clients to support and give more specific advice on the legal side of any discussions which are taking place, and child-inclusive mediation, where the child is spoken to as part of the process.
It is important to note that agreements reached through mediation are not binding. Conversations in mediation usually take place on a ‘without prejudice’ basis, meaning that something said in mediation cannot later be relied upon at court. The benefit of this is that it encourages open conversations, without fear of being held to a position. The downfall, however, is there is no guarantee that a person will stick to what they have said in mediation.
In financial arrangements arising from divorce/dissolution, this can be easily resolved by having a financial remedy order drawn up through a solicitor and approved through the uncontested court process. This will formalise the agreement reached through mediation, and make it binding and enforceable. Whilst court involvement is still needed on this process, it is a case of a Judge reviewing a draft order and ensuring the agreement reached is fair. This takes minutes, as opposed to the hours and days that will be required through contested court proceedings.
There is no corresponding approach in agreements reached around the care of children. Whilst a consented order can be sought from the court, this is incredibly rare. However, mediation between parents has the benefit of establishing a precedent of working together to reach an agreement for the child – something which court proceedings would not. Furthermore, whilst an agreement reached will not be binding, the longer it is left in place, the more likely it is to be considered the ‘status quo’ by the court. The status quo is one of the factors that the court will consider if asked to make a determination in the future.
History of the Government’s push towards mediation
Mediation has long been an option that is favoured by the Government because it is seen to take matters away from courtrooms, freeing up the court’s time to deal with matters than cannot be mediated, such as those where domestic abuse is prevalent or where there are issues around child protection (care proceedings).
In 2014, it was made compulsory for all applicants in family proceedings to attend a Mediation Information and Assessment meeting (MIAM) which is an initial, individual and confidential meeting with a mediator to discuss the options available for mediation, and to see whether it would be appropriate in the circumstances. There were set exemptions for MIAMs to include in cases where domestic abuse was present, or if the respondent could not be contacted. Whilst the intention was for MIAMs to reduce the number of applications to the Family Court, in practice they were seen by many as something to tick off before making an application. Providing the meeting had been attended, or a genuine exemption applied, there was little else the court could do.
In 2021, the Government launched the Family Mediation Voucher Scheme which offered separating parents a voucher of up to £500 for mediation. This scheme continued through the Sunak Government and has recently been extended to March 2026 under the Labour Government. In a Government press release in April 2024, it was reported that “early analysis from the first 7,200 families to use the scheme, shows more than two-thirds reached agreement without the need to go to court.” Arguably, the Scheme should be solving the backlogs in the Family Court, however the Ministry of Justice figures appear to show otherwise, with applications to the court remaining high.
Recommendation for Mandatory Mediation
In March 2023, the Government announced that it was considering mandatory mediation in private family matters (i.e., not those involving local authorities). A consultation was opened up on the issue over the next few months. In opening this consultation, the Government suggested that separating couples would be obligated to attempt to resolve their child and financial arrangements through a qualified mediator, before court could even be a consideration. Cases which included allegations of domestic abuse or certain child protection requirements would be spared from the mandate.
The Government also put forward the plan to give judges new powers to order parties in proceedings to make a reasonable attempt to mediate, with possible financial penalties if they acted unreasonably.
In announcing the consultation, the Government “expected the move could help up to 19,000 separating families resolve their issues away from the courtroom, while also reducing backlogs, easing pressures on the family courts and ensuring the justice system can focus on the families it most needs to protect”.[2]
What was ultimately introduced?
In the end, the Government did not introduce mandatory mediation, but changes were put in place to put mediation, and other Non-Court alternatives, higher on the list of considerations.
The changes came about through amendments to the Family Procedure Rules, which govern and standardise processes and procedures in the Family Court in England and Wales. These rules have been in place since 2010 but are regularly updated. In April 2024, the rules were extended to strengthen the provisions on mediation and other alternatives to court. These changes include:
- Limits being placed on the exemptions that can be claimed from attending a MIAM, with an urge for remote MIAMs to be considered in difficult circumstances, rather than simply saying they aren’t appropriate. There is also expected to be early scrutiny by the court of compliance with the MIAM rules when a party initiates proceedings.
- The requirement for parties to provide each other and the court with a set form explaining how they have meaningfully engaged with Non-Court alternatives to date (and if not, why not) and whether they would be open to those alternatives going forward. The new form must be produced in advance of the first court hearing, and the court can request that further forms are completed before subsequent hearings, so that it can monitor the parties’ positions.
- Provision for judges to encourage parties to engage in Non-Court alternatives during the litigation process and to seek advice and information about other options available. Furthermore, there is provision for judges to postpone court hearings to allow for this, if they think it appropriate. Unlike before, the parties’ agreement to this postponement is not required and a judge can simply put a hold on proceedings until they are satisfied that the parties have made attempts to resolve their matter outside of court.
- The ability for judges to penalise a party for a lack of engagement with NCDR through costs orders.
As such, whilst the new rules do not go quite as far as making mediation mandatory, the ability to penalise someone for refusing to engage with Non-Court alternatives does create a requirement to give it serious consideration not just at the outset of proceedings, but throughout. Indeed, we have already seen case law where a party has had a costs order made against them for not engaging proactively in Non-Court alternatives[3], and it is understood that Judges are being asked to be robust with this issue going forward.
Of course, if a case can be resolved without going to court or at an earlier stage in the proceedings, this lessens the burden on the court and, hopefully, will go someway to reducing the backlog. However, it is questioned whether mediation, mandatory or otherwise, will be sufficient on its own to address the backlogs in the Family Court in England and Wales. The figures did not show a reduction in court applications made following the introduction of the Family Mediation Voucher Scheme, but only time will tell if the threat of penalties for not engaging will be sufficient to turn the tide.
If mediation is not suitable for me, am I stuck with the Court delays?
Though mediation has been a preference of the Government for over a decade, it has always been clear that any requirement to mediate would not apply in cases where domestic abuse is present. It is commonly accepted that mediation will only work in cases where both parties are willing to compromise. If there is a power imbalance or a fear to speak openly, then mediation is unlikely to be successful.
That is not to say that mediation should not be attempted in all cases where there has been, or continues to be, domestic abuse. A qualified mediator will be able to consider the circumstances of the attendees, and explore whether it can work in their circumstances, perhaps with certain protections put in place.
If mediation is not appropriate or wanted in the circumstances, there are many other alternatives available to the court process. In fact, the other change to the Family Procedure Rules in April 2024, was to extend the definition of ‘non-court dispute resolution’ (NCDR) so that it includes more than just mediation, such as:
- Arbitration: This is where an Arbitrator is appointed by the parties to determine the outcome of the case, rather than this taking place through the court process. The arbitration takes place much like a private court hearing (though often with everything happening ‘on paper’ rather than the parties being required to attend the same place together) and the parties will be bound by the outcome. In finances, this would again be recorded through a financial remedy order. Arbitration can be used successfully in respect of child arrangements, however, and is therefore more binding than an agreement in mediation, as it can be referred to outside of the process, without the delay of the court process.
- Neutral evaluation: In finances, this is often known as a private Financial Dispute Resolution appointment (pFDR), but it can be used in relation to child arrangements too. The parties will select and pay for a judge/evaluator (usually an experienced barrister) who will sit on a date convenient to the parties and at a venue of their choosing. The private Judge/evaluator will review the relevant evidence beforehand and then both sides will explain their positions through their legal representatives. The Judge/evaluator will assess the merits of each case and give an indication on what they think a court would decide based on the evidence. Their decision is not binding. It is up to the parties to try and use the indication to reach an agreement.
- Collaborative law: Here parties sign up to deal with matters by way of a series of roundtable meetings only (and no correspondence) and sign an agreement to say they specifically agree not to go to court. If the resile from that agreement, they would not be able to continue with their current solicitors, and would need to effectively start again with new representation.
The changes to the Family Procedure Rules are also written in such a way that it leaves the door open for new forms of NCDR. This allows solicitors to think creatively about what Non-Court alternative could be appropriate in their client’s circumstances.
In summary, even in cases where there is high-conflict between the parties, such as where there has been domestic abuse, it may still be possible to resolve matters outside of the court process, thereby avoiding the delays of the Family Court in England and Wales. If it is not possible, however, it is hoped that in due course the move towards mandatory mediation (or, as it really is, highly-encouraged NCDR) will start to clear the backlog so that cases that must be resolved through court can be treated as a priority.
We can assist you in finding the right approach for your circumstances, be that using NCDR or navigating the court system. Please contact our Family Law team, who are on hand to help.
[1] Family_Court_Tables__Jul-Sep_2024_.ods
[2] https://www.gov.uk/government/news/plans-to-protect-children-under-new-mediation-reforms
[3] AM v RF [2024] EWFC 288