Guest post by Victoria Walker, a partner in the family team at Moore Barlow
Walker: Cultural and structural change needed
We often talk about mediation as the better route: less adversarial, more constructive, a way to move forward rather than drag each other down.
But there’s a tension we don’t talk about enough – that in our well-meaning drive to keep people out of court, we might be nudging some into spaces that feel anything but safe.
Because not all relationships are balanced. Not all people come to the table on equal footing. And if we don’t acknowledge that – and act on it – then mediation can go from being a constructive tool to something far more dangerous.
The courts want people to mediate but mediation is not always the answer; family lawyers need to ask better questions and dig deeper when considering if mediation is really appropriate. For survivors of domestic abuse, and the profession we represent, improved screening for domestic abuse is essential. And long overdue.
Abuse isn’t always visible
The image many still carry of domestic abuse is an outdated one. It used to be called domestic violence and so comes with implications of black eyes, raised voices and holes in walls.
But domestic abuse, as defined by the Domestic Abuse Act 2021, is much wider than that. It includes emotional manipulation, psychological pressure, financial control and coercive behaviour, all of which can be devastating – and invisible.
And it’s precisely those invisible forms of abuse that are most likely to be missed by family lawyers and mediators.
But they are so common. In fact, the majority of clients I have worked with over the last year have experienced some kind of domestic abuse.
They may say no when initially asked, but when I follow up – perhaps asking ‘How do you arrange the finances in your relationship?’, ‘Has anyone tried to stop you from working?’ or ‘Has someone made you feel like you’re the problem?’ – they slowly realise abuse takes many forms.
When the assumption of fairness creates risk
Mediation is rooted in the idea of collaboration. The belief that if we just get everyone in the same (real or virtual) room, with the right support, we can find a way through.
But that belief only holds if the parties are broadly equal in power, confidence, safety and knowledge. Just because they’ve been in a long-term relationship with one another certainly doesn’t mean that they have had equivalence in that relationship.
When one party holds significant power over the other, mediation can reproduce those same imbalances, only now in a setting that legitimises them. And unlike a courtroom, where a judge may step in to challenge behaviour or address imbalance, mediation can make people feel like they have to sort it out between themselves.
That’s a huge risk.
Last October’s Resolution report on domestic abuse in financial remedy proceedings paints a stark picture: 80% of professionals said domestic abuse, particularly economic abuse, wasn’t sufficiently taken into account during divorce and separation cases.
Lawyers reported cases of post-separation abuse continuing under the radar, often using the legal process itself as a weapon. This includes delay tactics or withholding disclosure to stall. It’s not just frustrating – it’s harmful. And it’s happening now.
Lawyers have a responsibility to do better
Lawyers are often the first port of call. Which means they have a responsibility not just to advise on process but also to protect against harm. If a client discloses abuse, they know what to do. But what if the client doesn’t? What if they don’t have the language for it? What if they’ve never named it, even to themselves?
That’s where good practice becomes vital. It means embedding better screening into first conversations. Not assuming that silence means safety. Listening for hesitations. Following up, using tools like the DASH checklist and being familiar with frameworks like those in the MIAM Standards.
It also means building stronger partnerships with mediators. The best family solicitors know when to refer, but also when to question whether mediation is suitable. That doesn’t mean dismissing it entirely.
There are hybrid models, shuttle processes, and options like co-mediation that can offer more safeguards. But we need to be honest: the default to mediation without a proper assessment is just not good enough.
Why hasn’t the legal profession caught up?
Part of it is cultural. The law moves slowly and there’s still a hangover from when domestic abuse was seen as something physical, private and separate from the financial or legal.
But part of it is also structural. Training on domestic abuse is still optional for many professionals and there’s an ongoing shortage of accredited providers. And while initiatives like the Family Mediation Trust’s new funding for screening resources are welcome, progress can seem piecemeal.
I expect this will change as younger generations enter the profession. The will is growing. But as it stands, we’re behind. And in the meantime, survivors continue to walk into rooms that may not be safe, guided there by professionals with good intentions but who haven’t given it sufficient consideration.
So what now?
If there’s one thing the legal profession could do today, it would be to make domestic abuse and safeguarding training mandatory for all family lawyers and mediators. Not just as a policy, but as a culture.
It should be as integral to practice as knowing the law itself. And for firms, that means embedding it into onboarding, supervision and safeguarding policies, and the everyday questions we ask.
We also need clearer guidance on when mediation is not appropriate, and the courage to say so. Courts are overloaded. We know that. But pushing people into unsafe spaces for the sake of efficiency isn’t justice. And if we claim to be client-led, we need to mean it.
There’s no one-size-fits-all. Mediation can be transformative when done right. But it’s not always the answer. Our role is to help clients navigate what is right and do so with honesty, care and rigour.
Because when we assume that everyone is starting from the same place, we fail the people who most need our support.
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