Mediation moves centre stage
For years it has been recognised that family disputes are different from other types of conflict.
The reasons are perhaps obvious. For most people the family is the centre of their world. When things go wrong in our private lives our senses of who we are and who and what we can rely on are shaken.
Our ability to make good judgements can be dislocated by the whirlwind of emotions churning inside.
Family disputes are not like disputes over things. Families are about connectedness.
If your car is badly serviced you may sue the garage that did a bad job and never go back there, but if you have children you will always have some form of relationship with their other parent and even where there are no children you are likely to have ongoing relationships with relatives and mutual friends.
Finally, and most importantly, many disputes involve children. Anything involving children comes, or should come, marked ‘handle with care.’
Theory and experience both suggest that when disputes arise in the family, going to court should be a step of last resort rather than a first port of call.
Family disputes which are resolved by the parties themselves tend to have more acceptable and lasting outcomes. You will own the outcome. And, of course, the cost, delay and stress of going to court is avoided.
For some time applicants for court orders have needed to indicate if they have attended a meeting (known in the trade as a MIAM short for Mediation Information and Assessment Meeting) when they first lodge the court papers. However if they hadn’t done so there tended to be few if any sanctions.
Until now. From 22nd April any person applying for an order in a family dispute relating to children or money must also lodge a certificate with the court. That certificate must either confirm they have attended a MIAM, make a claim for exemption from attendance, or be certified by an approved mediator to the effect that the person is exempt.
The claim for exemption will be considered by the judge at the first hearing. If the judge is not satisfied that it is well made the proceedings are likely to be adjourned to allow the parties to go to a mediation meeting.
The possible exemptions are detailed and numerous and for ease of reference we list them below.
Litigants will find that from now on all family judges will be mediation minded and may raise the possibility of adjourning the case to give mediation a chance if initial concerns or tensions dissipate.
As members of Resolution, all our lawyers have for many years adopted a non-confrontational approach and valued the use of mediation where appropriate. We shall continue to do so and give clients best advice about these new rules as well as constructively supporting clients through mediation.
Mediators do not give legal advice and will always encourage parties in mediation to seek support and guidance from their respective lawyers during and after the mediation process.
This is one of a raft of changes coming into force after Easter. Tuesday 22nd April marks a sea change in the practice of family law. One of these changes may be to make the word ‘alternative’ in Alternative Dispute Resolution seem superfluous with mediation coming to be seen as the first and best choice for resolving family conflict.
A MIAM exemption may be claimed if at least one of the following apply
· There is evidence of domestic violence. Only certain forms of evidence are acceptable. We shall give you detailed advice about this.
Child protection concerns
· A child would be the subject of the application and that child or another child of the family who is living with that child is currently the subject of enquiries by a local authority; or the subject of a child protection plan put in place by a local authority;
The application must be made urgently because—
· There is risk to the life, liberty or physical safety of the prospective applicant or his or her family or his or her home; or
· Any delay caused by attending a MIAM would cause—
a) a risk of harm to a child;
b) a risk of unlawful removal of a child from the United Kingdom, or
c) a risk of unlawful retention of a child who is currently outside England and Wales;
d) a significant risk of a miscarriage of justice;
e) unreasonable hardship to the prospective applicant; or
f) irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence); or
· There is a significant risk that in the period necessary to schedule and attend a MIAM, proceedings relating to the dispute will be brought in another state in which a valid claim to jurisdiction may exist, such that a court in that other State would be seised of the dispute before a court in England and Wales.
Previous MIAM attendance or MIAM exemption
· In the 4 months prior to making the application, the person attended a MIAM or participated in another form of non-court dispute resolution relating to the same or substantially the same dispute; or
· At the time of making the application, the person is participating in another form of non-court dispute resolution relating to the same or substantially the same dispute; or
· In the 4 months prior to making the application, the person filed a relevant family application confirming that a MIAM exemption applied; and that application related to the same or substantially the same dispute; or
· The application would be made in existing proceedings which are continuing and the prospective applicant attended a MIAM before initiating those proceedings;
· The application would be made in existing proceedings which are continuing and a MIAM exemption applied to the application for those proceedings;
Bankruptcy of applicant
· There is evidence that the prospective applicant is bankrupt and the proceedings would be for a financial remedy.
· The prospective applicant does not have sufficient contact details for any of the prospective respondents to enable a family mediator to contact any of the prospective respondents for the purpose of scheduling the MIAM.
Application made without notice
· The application would be made without notice to your opponent.
Certain types of disability or unavailability
· The prospective applicant is or all of the prospective respondents are subject to a disability or other inability that would prevent attendance at a MIAM unless appropriate facilities can be offered by an authorised mediator and the prospective applicant has contacted as many authorised family mediators as have an office within fifteen miles of his or home (or three of them if there are three or more), and all have stated that they are unable to provide such facilities; and the names, postal addresses and telephone numbers or e-mail addresses for such authorised family mediators, and the dates of contact, can be provided to the court if requested; or
· The prospective applicant or all of the prospective respondents cannot attend a MIAM because he or she is, or they are, as the case may be—
a) in prison or any other institution in which he or she is or they are required to be detained;
b) subject to conditions of bail that prevent contact with the other person; or
c) subject to a licence with a prohibited contact requirement in relation to the other person.
Parties resident outside jurisdiction
· The prospective applicant or all of the prospective respondents are not habitually resident in England and Wales.
A party to the proceedings is or maybe a child
· A child is one of the prospective parties.
Non availability of mediators
· The prospective applicant has contacted as many authorised family mediators as have an office within fifteen miles of his or her home (or three of them if there are three or more), and all of them have stated that they are not available to conduct a MIAM within fifteen business days of the date of contact; and the names, postal addresses and telephone numbers or e-mail addresses for such authorised family mediators, and the dates of contact, can be provided to the court if requested; or
· There is no authorised family mediator with an office within fifteen miles of the prospective applicant’s home
· Mediation is not suitable as a means of resolving the dispute because none of the respondents is willing to attend a MIAM; or
· Mediation is not suitable as a means of resolving the dispute because all of the respondents failed without good reason to attend a MIAM appointment; or
· Mediation is otherwise not suitable as a means of resolving the dispute.
If you would like to speak to a family law specialist, please phone 0345 357 9650 or email email@example.com