Mediation - the ‘new’ requirements before issuing court proceedings

3 June 2014

As reported widely in the media recently, important changes to the family justice system came in to force on 22 April 2014. One of the key changes was the amendment to many of the court application forms (in particular those for commencing children and financial proceedings), which now require confirmation that mediation has been considered as a method for resolving financial or children issues on separation.

The new financial application (Form A) and the application for an order under section 8 of the Children Act (C100) have been amended to include specific reference to attending a mediation information and assessment meeting (known as a MIAM) before the start of court proceedings.  An applicant must now record on the application form itself whether a MIAM has been attended and, if it hasn’t, confirm why (with reference to a limited list of exceptions).

The requirement to attend a MIAM before issuing court proceedings is not new; it has been in place since April 2011.  However, prior to 22 April 2014, proof of attendance at the MIAM was provided on a separate form (the FM1) and was supposed to be submitted to court with the main application (Form A/C100).  Judges and court staff reported that FM1s were missing in a number of cases, which meant that presumably the requirement to attend a MIAM was not complied with.  Despite this, applications were still being issued by the court, which led to practitioners (and litigants in person) taking the view that the MIAM requirement ‘lacked teeth’.

As April 2014 and the impending changes to the family justice reforms approached, the President of the family Division, Mr Justice Munby, advised that, going forward, applications will not be accepted by the court without the relevant MIAMs section being completed.  The courts now have the power to make a preliminary order requiring parties to attend a MIAM before the first court hearing.  Consideration will also be given to mediation (and other forms of alternate dispute resolution) at various stages during the proceedings and the court has the power to adjourn proceedings to allow parties to attend mediation to discuss one or all of the issues.

It remains to be seen whether the tightening up of the MIAM process will result in more people using mediation (or other alternative methods for resolving issues) rather than resorting to court.  Mediation centres across England and Wales have reported a drop in the number of people attending mediation and it is believed that the withdrawal of public funding (legal aid) in the majority of family cases has been a factor.  Without the ability to take legal advice under the public funding scheme, many people miss out on the benefit of any legal advice (including advice about using mediation) and have no choice but to head straight to court. This has also resulted in more litigants representing themselves in court, which presents its own challenges both for the individuals involved and the court itself, often resulting in added pressure and delay. 

From our experience, using the court system is not always the best route for every couple facing divorce or separation. Alternatives such as mediation, collaborative law and arbitration can offer some couples quicker, private, less confrontational and often more cost effective ways of resolving the issues.  We also help clients by negotiating with their partner or partner’s solicitors outside of the formal court arena, leaving them in greater control of the process overall and enabling them to reach a fair agreement for everyone.

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