22 to 26 January 2024 marks Family Mediation Week 2024, an annual event run by the Family Mediation Council (“FMC”) devoted to raising awareness of mediation and the ways in which it can help and benefit separating couples and their families. Throughout the week, the FMC publishes resources and information about mediation and hosts events for the public, lawyers, other professionals working with separating families, and mediators.

Mediation is one of a number of different processes (referred to collectively as ‘Non-Court Dispute Resolution’ (“NCDR”)) which can assist separating couples with resolving financial or children-related issues arising from the breakdown of a relationship, if they wish to avoid the stress and expense of court proceedings. Mediation typically involves a trained professional – the mediator – assisting the separating couple in negotiating an agreement by exploring solutions in a structured, consensual manner. The process is ‘without prejudice’, meaning that if the separating couple cannot reach an agreement and end up embarking on court proceedings afterwards, their discussions in mediation cannot be referred to in court. Mediators are independent and impartial and do not provide legal advice. Separating couples can therefore choose to have their respective solicitors ready to advise as and when needed (or even attend the mediation with them).

The benefits of mediation 

If mediation is appropriate, it can have significant benefits:

1. Reduced costs;
2. Reduced conflict, which will help maintain a positive co-parenting relationship post-separation;
3. A forum in which the separating couple can listen to one another and reach a tailor-made agreement which suits their family’s needs and has the flexibility to go beyond what a court would order; and
4. Retaining control over the outcome, instead of giving up control to a judge.

It is important to note that mediation will be more constructive where there is trust and respect between the separating couple and a mutual willingness to engage in the process and make compromises where it is reasonable to do so. Where finances are being discussed, the first important step is for both to have a clear understanding of the financial landscape, often by agreeing a schedule of assets, liabilities and income or exchanging financial disclosure on a voluntary basis in advance of mediation. A further cost-saving benefit of mediation is that, unlike in court proceedings where both parties are required to provide ‘full and frank’ financial disclosure, in mediation, the parties are able to agree on the extent of the disclosure to be provided and the format for producing this.

Privacy and confidentiality 

One particular consideration for separating couples to have in mind, when exploring NCDR such as mediation as opposed to court proceedings, is privacy. While reporters have previously been able to attend family cases, they have been subject to rigorous restrictions on what they can report.  However, there is a new push by judges to increase transparency in the family courts – and to extend the scope of what can be publicly reported. With the extension of the Transparency Implementation Group Reporting Pilot (“the transparency pilot”) at the end of January 2024, it is anticipated that there will be increased reporting on family cases. The transparency pilot will take place in 16 courts and introduces the presumption that accredited media and legal bloggers are allowed to report on what they see and hear during family court cases, albeit this is subject to strict rules about anonymity and confidentiality.  However, parties often remained concerned that it may be possible for close friends/family members to identify them, based on what is reported.

This is likely to be a particularly significant concern for high-profile individuals, but it will also worry anyone who wants their family dispute to remain completely private. In contrast to the push for transparency in family court cases, NCDR is completely private. With NCDR, it is possible that the press will never find out any details about the family dispute.

There are also the additional costs to think about. The presumption that the press can report on what they see and hear in court (and that they may receive detailed documents with substantial information about the separating couple, their family and the proceedings) is likely to lead to additional work for legal teams in cases where the parties are concerned about reporting. The court will grant what is called a Transparency Order which ordinarily will permit reporting subject to restrictions to preserve anonymity and confidentiality. If a party or both parties do not agree to the court making the standard Transparency Order, they may have to make additional applications to try to further restrict reporting. Extra legal fees will be incurred where steps need to be taken to avoid or minimise what can be reported following a family court hearing.

A push for more separating couples to mediate 

Typically, couples are only able to embark on mediation if both parties agree to do so. However, whilst previously often overlooked by many, there is now a marked increase in couples opting for methods of NCDR such as mediation.

The Family Procedure (Amendments No. 2) Rules 2023/1324 will come into force in April 2024. This will contain significant updates in relation to NCDR, including a new requirement for parties in financial and children proceedings to complete a form setting out their views on using NCDR to resolve issues.

The court will also be able to adjourn (delay) the proceedings to enable NCDR to take place regardless of whether the parties have agreed to such an adjournment. This was recommended by Mr Justice Mostyn in the case of Mann v Mann [2014] 2 FLR 928: previously, the parties had to agree to such an adjournment. At present, the court can only adjourn the proceedings to enable the parties to consider using NCDR (as opposed to allowing NCDR to take place) without their agreement, as was ordered in WL v HL [2021] EWFC B10.

Recently, the Court of Appeal held in Churchill v Merthyr Tydfil CBC [2023] EWCA 1416 that in civil proceedings, the courts can order parties to engage in NCDR. In family proceedings, the courts are currently only able to encourage separating couples to do so, so family lawyers will have to wait to see whether Churchill will lead to the family courts being permitted to compel separating couples to engage in NCDR.