Compulsory Mediation for Couples Wishing to Divorce

From April 2011 couples who wish to get divorced are going to be required to consider mediation before they are entitled to issue proceedings in the Courts.

The Ministry of Justice have now produced a protocol setting out the procedure in the Family Court whereby in all divorce and family matters parties will be pushed in the direction of having their disputes dealt with by way of mediation rather than Court proceedings.

There is no doubt that for some people mediation can be a quicker, cheaper and less confrontational method of resolving issues than going to Court. It is not however, appropriate in all cases.

A Chance to Talk Outside of Court

The intention of the new procedure is that undertaking a mediation awareness session provides couples who are splitting up with a chance to talk about the situation in a less hostile environment than the courtroom. Through this process they can acknowledge their problems and consider options for resolving them. The mediator will undertake to help the couple assess their disputes, discuss the benefits of mediation and help them decide if it will work for them.

In legally aided cases, the compulsory reference to mediation has been in existence for several years already. The new procedure extends this to all family cases and not just those which are publicly funded.

Certainly the experience of the profession up until now is that a majority of cases actually do not succeed in being dealt with by mediation.

Where Mediation Can Help

The Ministry of Justice has given examples of where mediation can help. Where two parents are in dispute over securing 30 minutes extra contact time in relation to their children, or wish to vary an allocated contact day, it is a far better idea that the parents seek to resolve these issues themselves and that mediation can help them to do this by talking together with the assistance of a trained independent third party.

Exceptional Circumstances for Mediation being Unsuitable

The Court guidance gives a list of exceptional circumstances where mediation is going to be unsuitable, such as:

1. Where there is domestic violence.


2. Where the matter has been referred to a Mediator and the Mediator is satisfied that mediation is not suitable because one of the parties is unwilling to attend a mediation meeting.

It is clear that although parties are going to be recommended to seek mediation, they do not have to follow that recommendation. However, if a person who has a dispute insists on issuing proceedings rather than going down the mediation route, it is likely that when the matter first comes before the Court for a District Judge, to order the matter to be referred to mediation in any event. Consequently the parties would at that stage have no choice.

Concerns over Mediation

Serious concerns have been expressed about the new mediation process by professionals who work in this area. Some of the concerns are

1. Where violence is present, no mediation reference will be necessary. However, the protocol states that this will only be accepted where there has been a Police investigation, or the issue of Civil proceedings for protection of one of the parties within the last 12 months. Concerns have been raised that this is a very limited definition of violence. Professionals are well aware that domestic abuse often is present in cases where the Police have not been involved and proceedings have not been issued.


2. The requirement under the protocol is merely to attend an information and assessment meeting. It is not actually compulsory to commit to the process of mediation. It is quite likely that in many cases the initial mediation meeting will simply delay the issue of an application and the obtaining of an Order. It is simply adding an additional process to an already far from simple procedure.


3. The protocol takes no account of the likely support necessary for a number of people who have family problems, who have learning difficulties, mental illness or those whose lives have been affected by drink and drugs such that they need support and assistance to function independently.

Referral to Mediators in Liverpool and Merseyside

Percy Hughes & Roberts are able to help anyone who requires assistance with a referral to Mediators in our local area. As indicated above, publicly funded clients have been referred to mediation for many years and we have established relationships with qualified Mediators within the Liverpool and Mersyside area.

Percy Hughes & Roberts are able to help if you require assistance with a referral to mediators in Liverpool and Merseyside. Public funded clients have been referred to mediation for many years and there are established relationships with qualified and known mediators within the locality.

Percy Hughes & Roberts can also:

• Advise whether your case is one where the protocol need not be complied with.
• Give assistance on all legal aspects connected to a case.
• Assist by assessing documents, proving information, limiting issues and giving legal advice on what is and is not possible and assisting in dealing with the case efficiently.
• Arrange for an expert referral such as to obtain a Pension Actuaries advice if pension sharing is contemplated as part of a mediation agreement.
• Assist in drawing up a Consent Order for the Judges approval following a successful mediation.
• Assist with related legal issues such as conveyancing, will drafting, change of name or referral to experts for advice on debt, welfare benefit and housing matters.