MIAMs- Since 29th April 2024- “Bigger Carrot, Bigger Stick”

Since 29th April 2024, if a person refuses to attend a MIAM (1) and/or fails to make a ‘serious effort’ (2) to resolve their differences, without good reason (which includes providing a full financial disclosure) before (or during) court proceedings, using a suitable Non-Court Dispute Resolution (NCDR) process (3), including mediation, the court is now under a greater obligation, responsibility and duty to:

1. consider whether to adjourn court proceedings (4) to enable separating couples to attend a MIAM and attempt to resolve matters using an appropriate form of NCDR process (including mediation) and, where appropriate
2. order a person to pay the costs of another (5) if it considers that that person has unreasonably failed to attend a MIAM and/or (positively and constructively) engage in an appropriate NCDR (including mediation) (simply relying on an exchange of solicitor letters is not an appropriate form of NCDR)
   There are now far fewer opportunities to claim an exemption (6) from having to attend a MIAM
   You must now give ‘Open’ reasons in writing (not ‘Without Prejudice’) to your former partner and the court, if you do not wish to engage in NCDR and you must consider the impact of the language in your correspondence on the reader.
   See notes over page (1-6)

See cases
Re K 2022 Sir Geoffrey Vos- For the MIAM to be effective it must be enforced
X v Y 17th Jan 2024 Mrs Knowles- Serious effort must be made……..
NA v LA 23 May 2024- Mr Nicholas Allen KC- Parties still expected to attend NCDR process once urgent matter dealt with by the court
See Pre-action Protocol relating to the amended Family Procedure Rules and NCDR-
PRACTICE DIRECTION 9A – APPLICATION FOR A FINANCIAL REMEDY (justice.gov.uk)
PRACTICE DIRECTION 12B – CHILD ARRANGEMENTS PROGRAMME – Justice UK

Notes

1. MIAM- Mediation Information and Assessment meeting carried out by an Accredited Family Mediator trained and experienced in properly assessing whether mediation (or some other form of NCDR) is suitable for the separating couples in their particular situation, and if so, what support they are each and both likely to need to be successful.
2. ‘Serious effort’ X v Y- Mrs Justice Knowles 17 Jan 2024.
3. NCDR process includes Mediation, Collaborative practice, Neutral Evaluation, Arbitration, Private FDR (distinguish processes which promote and support choice, self-determinative decision-making from those in which the decision are made for you, such as Arbitration, Neutral Evaluation, Private FDRs)- Ask Ai to tell you about the differences.
4. In deciding whether to adjourn court proceedings, the court will have in mind:

a. The need to encourage people to attend a MIAM so that they can understand their options and make ‘informed choices’ before they decide whether to use the court process and resources
b. the need to save court expenses and resources
c. the need for the separating couple to save valuable resources which they might be using to pay for lawyers- X v Y Mrs Justice Knowles
d. the corrosive effect of litigation on trust and the scars litigation can leave

5. When considering whether NCDR (including mediation) is appropriate the court must consider the following, when they receive the court application:

a) Whether a MIAM has taken place with each person
b) When an MIAM exemption is claimed the court must consider whether the exemption was validly claimed or validly claimed but no longer applicable (see below).They should do this when they receive the court application (Gatekeeper)
c) Whether the parties attempted mediation or another appropriate form of NCDR

6. The change to ‘Exemptions’ includes

a. The need for you to demonstrate that ‘delay’ caused by using mediation/NCDR is likely to lead to financial hardship now requires ‘significant financial hardship’- 3c
b. 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.
c. The Domestic Violence exemption has been widened to Domestic Abuse-3a.
d. A person is no longer exempt simply because the Respondent refuses to attend.
e. A person is exempt if they have tried one of the defined forms of NCDR within last 4 months ie Mediation, Collaboration, Arbitration, Neutral Evaluation, Private FDRs- 3d