Mediation .. needed more than ever ?

New court rules are about to be introduced in the Family Court to make it harder for people to avoid using alternatives to court.

The Family Court has been overwhelmed by the number of cases that it has to deal with for years. Even before the Covid pandemic, it was struggling. Since then, matters have only got worse since. In addition to the challenges and delays caused by COVID, there have been years of underinvestment in the family justice system, as well as the removal of legal aid in most family law cases. You might assume that less legal aid might mean fewer court cases, but on the contrary, it simply led to more people representing themselves and commencing court applications that could have been resolved using alternatives to court (also known as non-court dispute resolution or NCDR).

One of the effects of too many cases in an under-resourced court is that applications can now take many months to run their course. Anywhere from 6 months to 2 years is not usually, sometimes longer.

The Family Court has been trying to encourage greater use of these alternatives (more accurately called negotiation, family mediationcollaborative law, and family arbitration) for years.

People who wish to commence an application in the Family Court for a financial remedy order in a divorce or an application about children etc. usually have to first attend a Mediation Information and Assessment Meeting (MIAM) with a mediator where they are provided with information about mediation and the other alternatives to court. If this prospective applicant wants to then mediate, the prospective respondent is invited to attend a MIAM and if they agree that mediation is the way forward, mediation can get underway. If either of them does not wish to mediate or if the prospective respondent simply ignores or refuses the invitation  to a MIAM), then then the application to the court can go ahead.

Th mediator will also assess whether the case is suitable for mediation; there are some cases which should only ever be resolved by the court.

There are various exemptions to the need to attend a MIAM (e.g. where there has been domestic violence or abuse, or where an application needs to be commenced due to an emergency.

MIAMs have been required for a while now. In the early days, a failure to attend a MIAM was often brushed aside. The court would issue the application, despite the failure to attend a MIAM and the court rarely took issue with non-attendance. The court forms hardly helped; e.g. a paper C100 application for a child arrangements order has a page about MIAMs which asks the applicant to sign it confirming MIAM attendance, but also says signing it isn’t compulsory.

However, as time went by, the court became tougher about it. The court would decline to issue applications where the MIAM has not taken place. In cases where the applicant had tried to avoid attending by, e.g. falsely claiming it was an emergency, the court would have none of it and would adjourn the application until a MIAM had taken place.

The court also has the power to adjourn court proceedings in order to allow the parties to use an alternative to court, (which would be mediation or arbitration. The collaborative process would not be suitable where there are court proceedings already underway, and negotiation has always been part of the litigation process.) .

In April 2024, the Family Procedure Rules will be amended to strengthen the position of alternatives court (which it calls NCDR) so that it is now defined as “‘methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law’.

The court will also now be able to order the parties to file and serve ‘a form setting out their views on using non-court dispute resolution as a means of resolving matters raised in the proceedings’.

It will no longer be necessary for the parties to consent to use NCDR. The attitude is now that compulsory NCDR that is ‘not disproportionately onerous and does not foreclose the parties’ effective access to the court’ is lawful. In financial cases, a failure to engage in NCDR without good reason may justify the court departing from the general rule that each party pays their own legal fees and it may make orders for costs against parties. (This threat of costs will not apply in children cases, where costs orders are exceptionally rare as they would not normally be appropriate).

The non-domestic violence MIAM exemptions enabling protective applicants from attending a  MIAM are also being tightened.

These steps are to be welcomed. They don’t go as far as the mandation of mediation. that was being proposed

It seems the the new rules will be applied firmly by the court. Lip service to the rules will not suffice so no better time to attend a MIAM and find out about mediation and ALL types of dispute resolution.

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