Should Family Justice Embrace the Civil Mediation Model? A Case for Reform

The conclusion of Family Mediation Week offers an opportune moment to reflect on the role mediation plays in the family justice system. As a barrister and mediator working in financial remedies cases, as well as related civil disputes such as Trust of Land claims and contentious probate matters, I frequently find myself asking whether the civil mediation model could be used more widely in financial remedies cases. In my view, it not only could be, but should be brought into the mainstream of alternative dispute resolution (ADR) in this area of law. Civil mediation is a long-established and highly effective dispute resolution tool across the civil justice system. Only a small number of civil disputes go all the way to trial, with most settling at mediation or shortly afterwards, and many resolving even before court proceedings are issued. There is no obvious reason why financial remedy cases could not achieve similar efficient outcomes if a comparable model were adopted.

What is civil mediation?

At its core, civil mediation is a confidential and voluntary negotiation facilitated by an independent mediator. Unlike most family mediations, however, a defining feature of civil mediations is the presence of lawyers and the structure of the mediation itself which usually takes place over a single, concentrated day. In practical terms, civil mediation usually involves the parties and their lawyers attending mediation together, but working from separate rooms. Whilst there can be a joint session where the parties meet, these are rarely used and instead the mediator ‘shuttles’ between them, holding private meetings with each side. What is said in those private sessions remains confidential unless the client authorises disclosure. This allows candid discussion of risk, bottom lines and settlement options.

Why is the civil model so effective?

One of the major reasons is cultural: civil litigants are expected to mediate. Under the Civil Procedure Rules the parties are required to engage with ADR at an early stage. Before issuing proceedings, they are expected to exchange sufficient information to understand the dispute, identify the issues, and consider ADR properly. Courts can and do impose cost sanctions on parties who unreasonably refuse to mediate or who fail to respond constructively to invitations to do so. In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the Court of Appeal confirmed that proceedings may be stayed for mediation and judges are required to promote ADR as part of active case management.

The results have created a culture in which mediation is not merely available but is expected. CEDR’s 2025 Audit recorded approximately 21,000 mediations in 2024, with an 87% settlement rate. The success rates speak for themselves.

Several features underpin the consistent effectiveness of civil mediation. Parties attend with the support of their lawyers, ensuring they understand the legal framework, receive real time advice, and are able to make genuinely informed settlement decisions. Mediation takes place once the essential information has been exchanged, but without the cost and burden of ‘trial ready’ preparation. This allows the process to occur at an earlier and more proportionate stage. The single day structure also maintains momentum and prevents the drift that can occur in more open ended processes. In my view, the absence of a joint meeting further reduces conflict and helps create an environment more conducive to settlement.

It is sometimes argued that mediation will falter when one party is entrenched or uncooperative, or that the process lacks sufficient rigour. In my experience, that is not the case, and the consistent success of the civil model suggests otherwise. As with private FDRs, the combination of an experienced mediator, a structured process and proper legal support means that even high conflict disputes regularly settle. While mediators cannot give legal advice, they can play a powerful role in guiding negotiations, testing each party’s position, challenging assumptions and encouraging realistic reflection on likely court outcomes. The result is that settlements reached at mediation often closely align with what a court might order, but without the delay, cost, adversarial escalation and emotional toll of full litigation.

Comparing existing family ADR options

In family law, the two most commonly used methods of alternative dispute resolution are the private financial dispute resolution hearings and traditional family mediation. Private FDRs can be very effective, but they tend to be more formal and positional. Parties prepare detailed written submissions and receive an indication from an evaluator. The process is adversarial by design which can limit creativity and compromise and these hearings usually take place after significant disclosure and preparation, by which time positions may have hardened and costs have already increased.

Traditional family mediation is different. Parties usually attend without their lawyers. This can encourage direct communication, but it can also create imbalance if one person is more confident or articulate than the other. Because mediators cannot give legal advice, parties faced with a financial remedies dispute may feel out of their depth and unable to commit to an agreement without first speaking to their lawyers. This can slow the process or cause it to stall, even when settlement is possible.

In 2018, Resolution introduced the Hybrid Mediation model, which is a close relative of the civil mediation model, but combining the safeguarding rigour and relational awareness of family mediation with the structure of civil mediation, including private caucuses (separate rooms), the mediator’s ability to hold confidential information, and the active involvement of lawyers throughout the process.

Yet despite the clear advantages of incorporating the civil model into the family sphere, hybrid mediation has not become the mainstream.

Why has hybrid (civil style) mediation not taken off?

First, professional culture in family mediation has long been rooted in safeguarding and transparency and there is a concern that the civil approach, where mediators may hold information, can feel at odds with traditional family practice. Although proper training and clear protocols address these concerns as does the presence of legal representation, professional culture evolves slowly.

Secondly hybrid mediation remains relatively new. Systemic change within legal practice tends to take time. Judicial familiarity, solicitor confidence, and practitioner training cannot develop overnight.

Thirdly, some solicitors still view mediation as suitable only for lower-conflict or more straightforward cases. In more complex financial disputes they may default to recommending a private FDR or court proceedings, rather than consider a civil-style mediation.

Finally, cost perception also plays a role. Hybrid mediation, particularly with lawyers involved throughout, can appear more expensive than traditional family mediation. Even where it proves more efficient overall, there is sometimes reluctance to adopt what is perceived as a ‘premium’ model at the outset.

Why are financial remedies so well suited?

In my view, however, financial remedies disputes are particularly well suited to a civil style or Hybrid mediation framework. These cases are, at their core, negotiations about assets, income and needs. While emotions are inevitably running high, financial remedies cases closely resemble civil matters such as contentious trust and probate disputes, which are routinely and successfully resolved through civil mediation, often involving complex asset structures, business and property interests, an assessment of needs and multiple parties. There is no principled reason why similar financial remedies cases should not be approached in the same way.

Civil or Hybrid mediation also offers the flexibility and creativity that family cases often require. The process can be adapted to support vulnerable participants while maintaining fairness, and it allows parties to reach solutions that courts either cannot or would not order, for example funding child focused ‘nesting’ arrangements, agreeing payments from third parties, or resolving connected issues such as child arrangements at the same time. This adaptability is one of the model’s greatest strengths and is particularly attractive with the needs of modern family disputes.

The process can also be adapted to protect vulnerable participants, offering a controlled, calm environment in which the parties may not need to see each other, which can be particularly valuable for parents who must continue co parenting after financial issues are resolved.

A case for cultural change

For all these reasons Civil style (or Hybrid) mediation has a vital role to play in financial remedy cases and in my view should be attempted in the majority of matters. It is particularly well suited to cases that would otherwise fall within the accelerated procedure, in other words where the parties can agree the scope of necessary disclosure, as well as intervenor or joinder disputes. In such cases, there is no principled reason why civil style mediation should not take place before proceedings are issued. Embedding mediation as a genuine pre proceedings step would support a much needed cultural shift: the court becomes a forum of last resort rather than the default starting point for financial remedy litigation.

A civil-style or Hybrid mediation model would not need to replace private FDRs but could complement them, resolving many disputes early or narrowing the issues that require judicial indication or determination. While some cases will unfortunately always need a judge, experience from the civil justice system shows that lawyer-supported mediation can sit at the heart of effective dispute resolution. There is no clear reason why financial remedies proceedings should not adopt similar features, with potential benefits including earlier engagement, lower costs, reduced conflict and a stronger foundation for co-parenting relationships.