NA v LA, the Mediation Voucher Scheme, and the Mediation Paradox: You Can Lead a Horse to Water…
A recent family law case, NA v LA [2024] EWFC 113, has brought renewed attention to the role of mediation in dispute resolution. The judgment, handed down by Deputy High Court Judge Clare Ambrose, serves as a clear reminder of the professional duty on legal advisers to inform and encourage clients to engage in non-court dispute resolution (NCDR), including mediation. In particular, she emphasised that legal representatives should document such advice and ensure that litigants understand the consequences of refusing to mediate — both in terms of adverse cost risks and emotional strain.
This dovetails with wider policy efforts to embed mediation into the justice system, including the Family Mediation Voucher Scheme, which has been extended to March 2026. The scheme offers up to £500 towards mediation costs for separating couples with children. Over 37,700 families have used the scheme so far, with approximately 70% achieving full or partial agreement — reducing pressure on overburdened courts.
🐎 You Can Lead a Horse to Water…
Despite these initiatives, many parties still decline to participate. Family Mediation Information and Assessment Meetings (MIAMs) — intended as gateways to constructive dialogue — are often bypassed, or parties attend simply as a tick-box exercise. Similarly, in civil claims, while the court can stay proceedings for mediation, many litigants either reject the offer outright or fail to engage meaningfully.
This gives rise to what is frequently described as the “mediation paradox”: although mediation is faster, cheaper, more flexible, and highly effective — particularly when properly explained and resourced — it remains underused in many sectors.
⚖️ Is Mandatory Mediation the Answer?
In the wake of the Churchill judgment (2023), which confirmed that courts can lawfully order parties to engage in pre-action mediation, policymakers have begun to consider mandatory mediation more seriously. Proposals include compulsory mediation for most small claims, and stronger judicial encouragement (or cost penalties) in family and commercial disputes.
Critics argue that compulsion undermines the very spirit of consensual resolution. But the counterpoint is pragmatic: if parties are not even prepared to have a structured conversation with a neutral facilitator, can they truly say they have done all they can to resolve matters?
Mediation does not guarantee settlement — but it does guarantee dialogue. And where parties are properly supported and motivated, dialogue often leads to resolution.
🧭 Conclusion
As NA v LA and the voucher scheme show, the infrastructure is there. The challenge lies in culture change: building trust in the process, empowering legal professionals to champion it, and ensuring parties see mediation not as a hurdle but as a lifeline.
We can lead a horse to water — but perhaps with the right incentives, education and encouragement, we can make it thirst.