In April 2011 all potential applicants for a court order in the relevant family proceedings will be expected, before making application, to have been referred to a mediator. Except in special circumstances, potential applicants must attempt to resolve their dispute through mediation, before going to court. The courts will expect all applicants to have compiled with this protocol before commencing court proceedings. If court proceedings are taken, then the court will wish to know at the first initial hearing whether mediation has been considered by the parties. In considering the conduct of any relevant family proceedings, the court will take into account any failure to comply with the protocol and may refer the parties to a meeting with a mediator before the proceeding continue further.
If both parties choose mediation, they will continue down that route. However if the mediator or either party feel that mediation will not be suitable in the individual case, or there is a risk to anyone's safety, they will be exempted and the case can continue towards court.
In serious circumstances – such as allegations of domestic violence or child protection – there will be no requirement to access mediation and the case will progress straight to court.
The Minister for Justice, Jonathan Djanogly said:
'Mediation already helps thousands of legally-aided people across England and Wales every year, but I am concerned those funding their own court actions are missing out on the benefits it can bring. Now everyone will have the opportunity to see if it could be a better solution than going straight to court.
'Currently many people repeatedly go to court to argue over matters they are better placed to sort out themselves – like securing 30 minutes extra contact time or varying their allocated contact days. This is expensive and emotionally draining for all concerned. Parents are best placed to resolve these types of issues and mediation can help them do this.
'Of course, I know mediation won't be right for everyone. It won't suit some people, who should be free to explore other avenues including court, or for those in serious or dangerous circumstances, for examples in cases of domestic violence or child protection. They will not be prevented from progressing straight to court.
President of the Law Society, Linda Lee, commented:
'As a matter of course any lawyer aims for an agreed solution through negotiation because going to court is stressful and expensive. This is not always possible and, in some cases, the court is the only appropriate way of resolving the problems'.
