BEWARE the court’s frustration if you decide not to mediate !

MIAM (Mediation Information and Assessment Meeting) since 29^th April 2024

Introduction

During the MIAM the mediator must help you to clearly understand the options you have in respect of non-court dispute resolution (NCDR) processes including the following

1. Mediation
2. Collaboration
3. Neutral Evaluation
4. Private FDRs
5. Arbitration

On the 29^th April 2024 changes to the Family Procedure Rules 2010 were introduced, placing a greater obligation, responsibility and duty on every person to make a ‘serious effort’ to resolve their differences before court proceedings are issued, and at every stage of court proceedings, where appropriate.

The courts now have greater powers to encourage and facilitate the use of mediation and other NCDR, if the mediation/NCDR process can managed ‘safely and appropriately’. It is for the Mediator to assess in a MIAM whether this is possible (suitability)

Key points

1. Changes to the Family Procedure Rules 2010 came into force on the 29 April 2024 giving added impetus to the court’s duty in this regard.
2. Rule 3.3(1) of the FPR mandates the court with a duty to consider if NCDR is appropriate, at every stage in proceedings. When deciding whether NCDR is appropriate, the court MUST consider:

1. Whether a MIAM took place
2. Whether a valid MIAM exemption was claimed or a mediator’s exemption confirmed
3. Whether the parties attempted mediation or another form of NCDR and the outcome of that process

Note: Exemptions from having to use NCDR has, in most cases, been tightened up.

• For example, to show that delay caused by using mediation/NCDR is likely to lead to financial hardship now requires ‘significant financial hardship’
• An inability to attend a physical office is no longer a reason for exemption. Only those people unable to access an online method would be exempt ie in prison.
• The Domestic Violence exemption has been widened to domestic abuse.
• A person is no longer exempt simply because the Respondent refuses to attend.
• Exempt if tried one of the defined forms of NCDR within last 4 months ie Mediation, Collaboration, Arbitration, Neutral Evaluation, Private FDRs.

Power to adjourn court proceedings.

• Where appropriate the court may direct that court proceedings be adjourned for a specified period to enable the parties to obtain information and advice (from a Mediator) about and consider using NCDR.

Important note: Since 29 April 2024 it is no longer necessary for the parties to agree to an adjournment of court proceedings for the court to adjourn for the purposes of mediation/NCDR  

Overriding objective

• The court’s overriding objective is to deal with each case justly which includes considering the ‘saving of expenses and court resources’.

Duty to actively manage court cases.

• The court has a duty to ‘actively case manage’, which includes, where appropriate, encouraging parties to use NCDR helping couples to settle the whole or part of the case, where appropriate.

• Changes to the FPR on the 29 April, among other things, promotes the court’s ability to encourage parties to use natural gaps in the court proceedings timetable to try NCDR

Cost orders

• As part of the court’s ‘encouragement tools’ the court can make costs orders if it considers that a person has unreasonably failed to either attend a MIAM or attend NCDR (This shift in making costs orders in family proceedings reflects what has happened in Civil proceedings)

The discretion to compel

• Guidance as to how a Family Court might exercise discretion to compel parties to attend mediation or another form of NCDR was set out in a Court of Appeal Civil case of Churchill v Merthyr Tydfill:

The court should only…….order parties to attend Mediation/NCDR (if)…….this does not impair the very essence of the right to proceed to a court hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost

• It was noted by Sir Geoffrey Vos in Churchill v Merthyr Tydfill that:

Even with initially unwilling parties, mediation can often be successful. Mediation……is in generally cheaper and quicker than court-based solutions.

Summary

The court may now actively encourage and facilitate the parties to use mediation and other NCDR by adjourning court proceedings and, in financial remedy proceedings, order parties to pay costs if the court considers that there has been a failure, without good reason, to engage in mediation and NCDR.

X v Y 17 January 2024

Mrs Justice Knowles

Mediation/NCDR is particularly apposite for family disputes because:

Litigation is so often corrosive of trust and scars those who may need to collaborate and co-operate in the future to parent their children.

Family resources should not be expended to the betterment of lawyers … when, with a proper appreciation of its benefits, the parties’ disputes can and should be resolved via non-court dispute resolution.

The court will keep under active review at every stage of court proceedings whether mediation/NCDR is suitable. Where this can be done safely, the court is very likely to think mediation/NCDR appropriate especially where parties and their lawyers have not engaged meaningfully in any form of mediation/NCDR before issuing proceedings.