The demand for family mediation to adapt and change has risen sharply in the contemporary English and Welsh family justice system. It concludes by arguing that policy focus must shift away from encouraging mediation as an alternative to litigation towards more nuanced understanding of mediation as a support to court based dispute resolution.

It also examines the legal framework governing all-issues divorce and dissolution in Ireland, pointing to the limited potential for mediation to act as an alternative to litigation. This article reviews attempts in Ireland, England and Wales to encourage family disputants to mediate, identifying weaknesses in the information strategy.

The Mediation Act 2017 adopts this position, assuming that the provision of information on mediation will increase uptake and that mediation offers an alternative to litigation for most civil disputes. Mediation currently plays a minor role in the Irish family justice system, yet a policy consensus exists that more couples should be encouraged to mediate and that increased rates of mediation will reduce the numbers seeking redress through the courts. The article therefore challenges critics of weak pluralism, who perceive that reliance on state recognition precludes institutions playing an important role outside of the state hierarchy. It is argued that although the family courts are still an important cornerstone of the justice landscape, alternative forums of dispute resolution increasingly play a positive role in enabling disputants to achieve their procedural and substantive goals and this is strengthened by a weak approach to legal pluralism which upholds the autonomy of the parties whilst also ensuring necessary protections and safeguards for vulnerable litigants. The second part of the article analyses how forums of dispute resolution which are delivered by non-state actors, but which rely on the state for their authority, have evolved to fill this justice gap and are therefore indicative of a move towards ‘weak’ legal pluralism in the context of family justice. The first part of this article examines how recent changes to family law and policy in England and Wales have reduced the ease with which parties are able to achieve procedural and substantive justice through the family courts. Increasingly, litigants face economic, physical and cultural barriers to courts brought about by rising court fees, reforms to the court system and demographic changes which have resulted in diverse family forms for whom the family courts may have little legitimacy. The family courts are plagued by delays and backlogs, whilst parties struggle to secure access to advice and representation due to cuts to public funding. It is widely documented that the formal family justice system in England and Wales is in crisis.

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