Is Mediation the Best Way Forward for All Family Legal Matters?

Since the Family Procedure Rules were updated in 2024, families have faced greater expectations to try mediation and other non-court dispute resolution (NCDR) methods.

Anyone applying to court for child arrangements or financial relief usually has to attempt mediation first before it can proceed to a first hearing.

A few exemptions exist for issues such as domestic abuse, where there are safeguarding concerns and urgency.

However, most families fall outside those exemptions, so mediation ends up on their doorstep whether they were prepared for it or not.

I support any process that reduces conflict and helps families reach a stable outcome without the need of a court application, but I also acknowledge that mediation and NCDR will not work for everyone for various reasons.

Why mediation continues to be encouraged for family matters

Mediation appeals to policymakers because it gives people space to make decisions quickly and with less of a cost.

Clients often appreciate the privacy and pace of the process and feel less pressure than they do in a courtroom.  Subject to certain constraints, the parties are in control of how and when the issues are considered and hopefully resolved.

Many believe the process gives them one final chance to shape their future in a way that feels fair and is on their own terms rather than a judge or magistrate making the decision for them.

I understand why judges and mediators encourage mediation and other forms of NCDR. The family court system is still incredibly stretched, and delays are ongoing, with no clear sign that anything will settle soon.

Any approach that resolves disagreements without lengthy litigation is naturally welcomed.

Where mediation creates progress

Mediation can be helpful when there is a willingness and ability from the parties to work through their issues collaboratively.

When that happens, people often reach decisions far quicker than they expected.

I see this with parents who simply want their children to feel settled and get back to their “new normal” as soon as possible.

I often see couples who feel overwhelmed by the financial side of separation work with a mediator. It gives them structure, and in a lot of cases, they find a way through decisions that once felt impossible.

Mediation also allows families to raise small but meaningful issues that a court might not address, such as how they plan to update each other about the children or how they divide personal items.

The process is flexible enough to suit a range of circumstances, for instance:

• Shuttle mediation allows parties to stay apart if direct discussion feels too intense.

• Online sessions can make the experience less daunting for those who struggle with formal environments.

• Child inclusive work gives children an opportunity to talk about how planned changes in their family life might affect them.

These options broaden access and encourage families to engage in a way that feels manageable, steering them towards healthier discussions.

Where mediation starts to falter

Mediation may not be possible when the relationship has been tainted by control or intimidation. A person who feels intimidated may agree to a proposal because they want the session to end rather than because the terms are fair, which should be guarded against.

Mediators can manage the dynamic to a point, although they cannot remove the pressure that comes from years of unequal power.

Cases involving family businesses, trusts or pensions with detailed structures raise other problems as they may need formal disclosure.

Mediation cannot force someone to reveal information. Without a full understanding of the assets, one party may agree to terms that later prove damaging.

If a child is at risk, a home is about to be sold without warning or a key asset in the case is about to be dissipated, an urgent application to court may be necessary and mediation is unlikely to be suitable.

Should mediation always be attempted?

I continue to recommend mediation where it feels right for the people involved. I also remain clear that it should never be the only route.  One size does not fit all.

I look at whether a client can speak freely, whether disclosure is likely to be honest and whether there is any risk of pressure or manipulation before making my recommendation.