Raab: Mediate or Pay the Costs
Documents produced by the Judiciary have shown that private family law cases may not return to pre-Covid levels until 2023. Backlogs in private law cases have increased 18% during the course of the pandemic.
This has led to interim measures including conducting more hearings on paper before any longer-term reforms begin to take effect.
As the country has made some progress in easing its way out of the pandemic, the over-stretched and over-whelmed court system appears more than ready for long-term reforms to be put in place. Enter Dominic Raab. The new justice secretary, lord chancellor, and deputy prime minister is drawing up plans to keep cases away from family courts in order to ease the backlog and encourage quicker and more cost-effective resolutions to conflict.
Family Mediation Voucher Scheme
Earlier this year, the Ministry of Justice introduced a £1 million mediation voucher scheme aimed at encouraging more families to mediate their issues. The scheme was topped up with an additional £800,000 in the summer.
Sir Andrew McFarlane, president of the family division, has said that more than 75% of family cases eligible for the vouchers have been successfully resolved away from the court. This success has clearly spurred on Mr Raab who takes the view that too many cases are going to court and he is keen to make mediation the default. He believes the courts are used as a weapon by many parents who are motivated by revenge as opposed to the interests of their children.
Of course, many legal professionals will remember mediation as being the Government’s flagship solution back in 2013 when legal aid was removed from almost all private family cases in order to encourage more clients to mediate. However, referrals took a nosedive in what can only be described as an embarrassing failure under the then lord chancellor Chris ‘failing’ Grayling (need we say more).
So how does the new lord chancellor plan to make a success of it this time around?
Part of Dominic Raab’s plan is to make it easier for the courts to award substantial legal cost orders against any parent thought to be abusing the court system. This means that parents thought to be unnecessarily clogging up the courts by bringing cases before a Judge instead of resolving the issues through alternative dispute resolution will face financial penalties which could potentially amount to thousands of pounds.
The only exception to this will be those cases involving domestic abuse or safeguarding issues. Which were also unaffected by the cuts to legal aid back in 2013. Mr Raab believes these issues should be kept under the remit of a Judge.
As these plans are yet to be confirmed and implemented, their implications remain to be seen. Will Dominic Raab fail to make mediation the default position just as Chris Grayling did? Or will he succeed and manage to ease the pressure on a court system at breaking point?
Our head of family law and mediation, Laura Clapton made the following comments:
“In many cases, the family court is the last place separated parents should find themselves. It is no secret that the Family Court is massively overstretched and under resourced. However, there’s a bigger issue and that is why parents find themselves in the position where they feel the court is the only answer and that a stranger in the form of a judge or panel of magistrates should decide their child’s future. In my view, penalising parents financially for taking their case through a court process is merely putting a plaster over the more serious and long term implications that parental conflict has on children. I would personally like to see more to be done to educate parents on the harm of parental conflict on children and for there to be better accessibility to family support services whether that be ADR such as mediation or courses like the separated parenting information programme. Too often parents are only made aware of such resources once they are already embroiled in the court process and further entrenched in their conflict.”
Blog Written by Kieran Conlon, Paralegal, Consilia Legal on 22.11.21