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Mandatory Mediation or Financial Penalties: A Move to Protect Children From Court Battles
Alternative dispute resolution has many applications, as it offers parties ways to resolve conflicts without going through potentially contentious litigation in court. This can be especially advantageous when applied to disputes among family members, such as issues of child custody. Understanding the benefits, the UK’s Ministry of Justice recently announced plans to make couples who are separating go through mandatory mediation to determine child custody and financial support arrangements. This article will explore mediation as it relates to family law, with a focus on this recent development in the UK.
What is Mediation?
Mediation is a form of alternative dispute resolution whereby an independent, neutral third party, a mediator, facilitates discussions between disputing parties to come to a settlement or agreement. Specifically for family law and custody issues, the mediator helps a couple discuss their issues in a non-confrontational environment so that they can agree on how to split assets and share custody of their children. The mediator should not take sides and cannot make decisions regarding the issues or conflicts in question. They should be trained to organize and focus the conversation, allowing the couple to calmly and respectfully explain their points of view and listen to the other’s perspective. The goal would be for the couple to come to an understanding, find a middle ground, and agree on a solution. Otherwise, they may end up in court, where a judge will make these decisions for them, to the dissatisfaction of everyone involved.
Currently, mediation is an available option for many government bodies overseeing child welfare matters, including the US and Canada. And as it has been proven effective (the UK reported that 69% of participants in a mediation voucher scheme mostly avoided court-determined arrangements), the UK is taking the step to make mediation mandatory to avoid families returning to courts, as there are estimates that around 25% of families with court-mandated custody arrangements return to court within three years.
Mandatory Mediation for Family Matters in the UK
As mentioned, mediation for family law matters is voluntary in the UK. There is a voucher program that offers a financial incentive for families to go through mediation rather than litigation in court, and family court judges can encourage couples to agree to mediation, even ordering parties to pay costs if they do not do so. This recent step by the Ministry of Justice will change the encouragement to mandates, including financial penalties for non-compliance.
This is intended to free the courts to address more severe family cases, such as those with domestic abuse and child protection issues (which would not be subject to the mandatory mediation being planned).
There are many other benefits to this planned mandatory mediation, including:
- Reducing conflicts through open communication: mediators are trained to de-escalate heated exchanges and promote constructive discussions. All parties are allowed to express their opinions and concerns, so they can explore different solutions openly. Such an environment is not typically possible in an adversarial court situation.
- Maintain relationships: even though a couple may be separating, it does not mean that their relationship has completely broken down, especially when there are children involved. Mediation can promote a spirit of compromise, as both parents will still need to interact as they raise their children together, separately. This may not be possible with litigation, as there is more likely to be a “winner” and a “loser.”
- Individual empowerment: rather than ceding all decision-making power to a judge in court, mediation allows couples to maintain some semblance of control, which may lead to a greater willingness to compromise. Also, by coming to an agreement in mediation, couples may take more responsibility and ownership over the terms of their custody and financial arrangements, compared to reluctant compliance with a judge’s orders.
- Protecting children’s interests: often, children are the most affected yet have the smallest voice in such family disputes. Mediators can help couples focus on their children’s interests and welfare, as they are often the best judges of what type of support, visitation, and custody would be most appropriate.
THAC is a world-class mediation center
All in all, mediation can be an extremely helpful process in family matters, helping parents reach settlements without putting their children through a potentially more traumatic court process. The UK has further confirmed this by planning to make mediation mandatory, with financial penalties for those who do not comply. Inside and outside of the UK, world-class dispute resolution centers, such as Thailand Arbitration Center (THAC), can assist families seeking to resolve issues through mediation.
As a world-class dispute resolution center, THAC can help parties with alternative dispute resolution (ADR) issues, from drafting contracts to deal with a breach of contract to organizing mediation to resolve personal or family matters. Conveniently located in central Bangkok, THAC can be reached by public transport and major thoroughfares with connections to international airports. THAC provides access to state-of-the-art facilities so that hearings can take place in person, remotely, or a combination of the two, supplemented with full administrative support. Parties can also find ADR professionals most suited to their situation as THAC maintains a directory of accredited experts with a wide range of experience.
