Along with other types of ‘Non-Court Dispute Resolution’ in court proceedings concerning the financial issues arising from divorce.
Family mediation has been around almost as long as I have.
Many of the pioneers of family mediation were based in Bristol, and I am quietly proud of the support family law practitioners working Bristol gave in those early days.
Family mediation is not for everyone, sometimes you just have to go to court, but mediation is surprisingly effective, and works in situations where it looks very unlikely. Mediation supported with clear legal advice is often the best way forward.
Family mediation is only one of a range of options together known as NCDR (‘Non-Court Dispute Resolution’). Other options include Collaborative Law and PFDR (Private Financial Dispute Resolution Appointments) which mimic the FDR appointment in the court process and are increasingly popular.
The judges and courts encourage mediation and a scheme known as ‘MIAMS’ has been in place for several years. Essentially it means that before you can make an application to court for a financial remedy, you have to approach an accredited family mediator and get a chit which says either that mediation has been tried and failed, or that mediation is not suitable for your case.
When the courts used paper processes you literally had to staple the MIAMSs chit to your application form. Now that the process is largely online and paperless, you have to tick a box in your application form to say you have got a MIAMS chit, and you will produce it to the judge at the first court appointment.
But MIAMS is not perfect. There are exceptions where you don’t need to go through MIAMS, and mediators seem relatively relaxed about signing to say case is not suitable. A recent amendment to the court rules[1] increases the pressure on parties to mediate.
Firstly, the rules now say that a judge can adjourn the case to ‘encourage’ the parties to consider NCDR. Previously the rules only allowed the judge to adjourn where both parties were agreeing to do NCDR. That may seem a small change, but it allows the judge to apply increased pressure on an unwilling party to go to mediation.
Secondly the judge can direct the parties to file a written statement setting out whether they are prepared to do NCDR or not, and if not why not. That statement can be used by the judge who deals with any trial, when it comes to the question of costs orders. So someone who refuses to go to mediation potentially faces the penalty of a cost order against them.
As with all changes to the rules, we will have to wait and see how it plays out. The law already allows the judge to take account of an unreasonable refusal to negotiate, but this adds another string to their bow.
[1] The Family Procedure (Amendment No 2) Rules 2023 (SI 2023/1324)4 were laid before Parliament on 7 December 2023 and will come into force partly on 8 April 2024 and partly on 29 April 2024
Warning :This post is intended as a general guide only – It is important to obtain expert advice about your own situation, I can certainly accept no responsibility for any loss you might suffer as a result of relying purely on the information on this website.
John Pratley is an expert divorce lawyer, who has more than 25 years’ experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple Tree Family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.