Mediation in Family Law: What’s new?

Mediation and/or other means of dispute resolution is not a new concept for family lawyers. However, following a recent development in the law, mediation (and/ or other means of dispute resolution) is going to be encouraged further.  The parties should make a genuine attempt at mediation, and in circumstances where no such attempt is made (without good reason), parties can now be penalised and/or have costs awarded against them.

What is mediation?

Mediation is a process by which an impartial third person assists those involved in the family breakdown to communicate better with one another and to reach their own agreed and informed decisions about some or all of the issues relating to or arising from divorce/finance or property.

In Mediation, lawyers are not present, however often you may have a solicitor instructed in the background, to assist you in preparing appropriate proposals and/or the suitability of the other party’s proposals.

Ultimately, in an age old concept, if the parties are able to reach an agreement between them, then it is likely any animosity between the parties will be significantly reduced, and appropriately managed. For children matters, this can often be the difference between parents who are able to maintain a friendship, rather than silent door to door drop offs.

What are the rules around mediation?

The requirement for a MIAM (Mediation Information and Assessment Meetings), prior to the issue of both children and financial applications was introduced in 2014. The purpose of this change, was to ensure that prospective litigants would have to first attend, and consider the possibility of resolving the dispute by way of mediation or other alternative routes of disputes resolution. Unfortunately, however, it has been clear for some time that often the MIAM process is considered as simply ‘part of the process’ in order to proceed to court, rather than a requirement to genuinely give alternative dispute resolution an attempt, to fully resolve the issues.

What changes are being made to the mediation rules?

From 29^th April 2024 onwards, the rules and duties are far more onerous. Firstly, the rules have sought to limit the exemptions to a MIAM, making it much harder for prospective litigants to avoid the MIAM process altogether. There is also an introduction of a requirement for the parties who have started proceedings to report to court in open correspondence about their approach to resolving their dispute by way of Non-Court Dispute Resolution (NCDR). This therefore creates a framework for checking-in and re-considering the possibility of alternative dispute resolution as the case progresses. The final, and arguably one of the prevalent changes, is the introduction of a power for the Judge to adjourn proceedings to allow the parties to investigate alternative dispute resolution without their agreement, and the changes to the costs rules.

From 29^th April 2024, the costs rules have been amended to include the failure to attend a MIAM or consider alternative dispute resolution as a reason to depart from the normal no order as to costs rule.

Potential litigants should always proceed with caution, not only due to the cost impacts as cited above, but also and more importantly, due to the impact it is likely to have on the relationship with the other party.  It is now more important than ever to consider the approach of your lawyer, as it appears the age of the aggression is now being pushed further and further behind us, with the sights of the court set firmly on resolution.

How can we help?

The breakdown of a relationship is a stressful time for everyone, especially when there are children involved.

If you have decided that you want a divorce, you can trust our specialist team of Family & Matrimonial Solicitors to take a pragmatic approach and guide you every step of the way – ensuring the best outcome for you, your children, and your finances. Contact us today to arrange an appointment.