Family Procedure Rules 2010: Mediation & the Devil in the Detail

Family Law|March 29th 2011

This week I am examining the Family Procedure Rules 2010, drawing out what I believe to be the most important changes for practitioners and clients. Today I would like to begin by looking at the Rules’ Overriding Objective (page 24). This is the new statement with which the Family Procedure Rules begin. It states:

These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

This mirrors the overriding objective which applies to civil cases, with the exception that it makes reference to “welfare issues”. Children and the incapacitated may be “welfare issues”. And any “welfare issues” will always take precedence over the Overriding Objective.

Rule 1.1(2) explains what it means to “deal with a case justly”:

Dealing with a case justly includes, so far as is practicable—

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Rule 1.3 states:

The parties are required to help the court to further the overriding objective.

If you ever thought you could simply sit back and let the law take its course, think again. It’s all hands to the pump. As for “dealing with a case in ways which are proportionate”: what does it mean?

Well, according to the new Family Procedure Rules, parties are expected to cooperate fully and help the court by being proactive. They must not delay or prevaricate. They must keep a sense of proportion. They must give full frank and honest disclosure all the way through the case. They must help the court to determine a case justly. They must always be prepared to try and settle their dispute by using alternative routes to the courtroom.

Alternative dispute resolution (ADR), including mediation, looms large from the outset.

Rule 3.2 (page 35) states:

The court must consider, at every stage in proceedings, whether alternative dispute resolution is appropriate.

In most cases, “assessment for suitability” for mediation, prior to the commencement of proceedings, is a prerequisite.

Before an applicant makes an application to the court for an order in relevant family proceedings, the applicant (or the applicant’s legal representative) should contact a family mediator to arrange for the applicant to attend an information meeting about family mediation and other forms of alternative dispute resolution.

Some people are already confused about this and think that a full-blown mediation itself must happen before an application may be made to the court. That is incorrect.  See the Pre-Application Protocol annexed to Practice Direction 3A for further information. You will note that in cases that involve violence for example, or require emergency action, no prior assessment is required at all. You will also note that after contacting three mediators within 15 miles of the applicant’s home, if none of them can see the applicant in the next 15 working days, then it won’t apply either.

Note that when a mediator does arrange a Mediation Information and Assessment Meeting with one or more parties to a dispute, costs could be incurred:

A mediator who arranges a Mediation Information and Assessment Meeting with one or more parties to a dispute should consider with the party or parties concerned whether public funding may be available to meet the cost of the meeting and any subsequent mediation. Where none of the parties is eligible for, or wishes to seek, public funding, any charge made by the mediator for the Mediation Information and Assessment Meeting will be the responsibility of the party or parties attending, in accordance with any agreement made with the mediator.

These costs could be incurred in what may turn out to be a fruitless waste of time. I think this will probably be the case for many couples, hot under the collar and distrustful of each other, one of whom may also be far more powerful than the other.

What also troubles me, as I have previously noted, is that on 6 April 2011 there will be very few mediators in England and Wales who are qualified to undertake these Mediation Information and Assessment Meetings.

So what’s the answer? The devil is in the detail.

When an application is ultimately made to the court, a Form FM1 must be lodged with the court. It should be completed by the mediator if there has been an assessment, explaining why the mediator considers the case unsuitable for mediation. If there has not been an assessment, it can be completed by the party or their legal adviser. Part 4 of the form gives the applicant room to explain why the protocol has not been complied with by the applicant.

It seems to me not unreasonable for a party to state that he or she is prepared to mediate. However this is only after court-ordered disclosure, given concerns as to say the respondent’s veracity, or the complexity of the case (and most cases are far from straightforward). Therefore he or she is unwilling to incur the costs and delay of a mediation assessment beforehand.

The issue of proceedings is specifically not to be regarded as a hostile step. (See the Pre Action Protocol annexed to Practice Direction 9A.) So why would refusing to participate in mediation from the outset, but being willing to proceed on a fully informed basis following completion of disclosure, be anything other than appropriate? It puts both parties on an equal footing, is fair, proportionate, saves costs and is fully in line with the Overriding Objective.

As 6 April is only days away, I requested a comment from the Ministry of Justice on the position, for readers of this blog. On this occasion my request was declined. Perhaps the date will be moved back. Perhaps we will find that Part 4 is completed by a very large number of applicants indeed.

At this point I recall that Lord Neuberger, Master of the Rolls, gave a speech in November in which he warned, Mediation is a complement to justice. It cannot ever be a substitute for justice”. Don’t his words stand in contrast to the Government’s plan to cut costs by promoting alternative dispute resolution? Perhaps the judiciary is already a step ahead of us.

Coming up

How powerful is the court in family proceedings? Find out tomorrow…

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(13)

  1. ObiterJ says:

    There are parallels with the criminal procedure rules. Grateful as ever for your excellent posts.

  2. Marilyn Stowe says:

    Thank you.
    I quite enjoyed doing this series once I got stuck in. I deliberately have avoided any references to the ‘old’ rules.
    I’m sad that the Latin terminology is going. I understand why however. It reminds me that when I was a law student I worked at various law firms in Leeds as a typist during the vacations. One day an unqualified clerk came back from court and whispered he had a problem. He knew I was studying law. He said the Judge had made a strange order. He had adjourned the case to ‘a sunny day’. What did he mean? He couldn’t work it out and hadn’t dared ask.
    The Judge had actually adjourned the case Sine Die….
    After that I used to tease the clerk and ask if it was a sunny enough day for the case to be heard….

  3. ObiterJ says:

    In children cases I have a feeling that some care will be needed re the “deal with the case justly” aspect of these rules. Many of these “care cases” require very detailed consideration and some of the factors listed in Rule 1.1(2) should come relatively low in one’s considerations when what the court is mandated by the Children Act 1989 s.1 to make the welfare of the child the paramount consideration.

    I notice that the Norgrove Review (interim report issued 31st March) is now wishing to change ADR to Dispute Resolution Services.

    People are being, in effect, forced into a contract with mediators and I am afraid that when people are over a barrel costs can rise. I fully expect mediation services in this area to become very expense.

    I would agree that a person should not have to enter mediation without full knowledge. If it is necessary to apply to the court for disclosure then costs are not being saved. Might as well go to the court in the first place?? I can see people going to mediation then coming to realise that they do not have all the necessary information and then going to court and then back to mediation. Do they seriously consider this to be an improvement?

  4. Marilyn Stowe says:

    Aboslutely. Couldnt agree more.

  5. Judy Park says:

    As a practising mediator I am looking forward ( with trepidation) to. The next few weeks. I was not sure why you said there are not enough mediators qualified to do the MIAMS meeting. On what evidence do you make that remark? Mediation is not for everyone and experienced, impartial mediators are quite capable of guiding and assisting their clients to make the right decision. If the answer is ‘no’ at least the client has made an informed choice.
    Marilyn, I thought you had sent a bunch of your team on mediation training earlier this year? You must have felt fairly optimistic at that point.
    We are a not for profit team and will not be charging anything for the assessment meeting. We look upon this as an opportunity and a challenge to introduce more people to the world of mediation with all the positives it can bring. Mediators,above all people know that mediation is not for everyone but let’s broaden the scope.

  6. James Thornton says:

    Judy,

    Many thanks for your comment. As Partner in charge of our mediation practice, Marilyn has asked me to reply. We have eight qualified lawyer-mediators, and we maintain an optimism and belief in mediation as one of a number of methods available to resolve disputes. What is frustrating is that with very little notice, many qualified mediators are – until they have been subjected to further assessments by the FMA – to be precluded from being allowed to conduct MIAMS in England and Wales. At the same time, of course, the same mediators are still permitted to conduct assessments for suitability in the context of voluntary mediation referrals! It seems absurd and gives rise to the concern that, in the short term at least, demand may outstrip supply.

    James

  7. Marion says:

    Hello Marylyn, we seem to have a spate of divorces in our family at the moment, mine included! The following springs to mind…..

    I’m wondering if you have had any feedback from judges regarding intransigent applicants or respondents who have refused to attend mediation as per the protocol introduced in April.? I guess cases will be coming to court now where the proceedings were started post April 6th. Are the judges really taking any notice of whether a couple have attended mediation, or not?

  8. Marilyn Stowe says:

    Hi Marion,
    I’m not a Judge, and dont have their ear, but there are different aspects to this. If someone wilfully refuses to attend a MIAMS then they do so at their own risk possibly in a potential costs order.
    However, I suspect that the Judiciary are fully aware of the fact that mediation is absolutely not a panacea for all ills;- and especially in ancillary relief cases where it is useless without full frank and honest disclosure having taken place, which more often than not does require the court’s assistance to obtain it.
    You have to consider with your client mediation taking place before disclosure has taken place on a proper footing.
    So whilst it remains a possibility for clients, many are indicating that at the present time, (not ruling it out entirely) it is not a suitable option by ticking Box 4. There is no point incurring delay and additional costs by going through a MIAMS exercise that is predestined to fail for lack of disclosure.
    Marilyn

  9. To vary or not to vary... says:

    Marilyn, what is your view of MIAMs / mediation in regard to variation of existing orders? If one party refuses point blank to negotiate and forces the other party to seek redress at court do you feel this gives that party grounds to apply for costs should they be successful in their case against the unco-operative party?

  10. Marilyn Stowe says:

    There is the over riding objective which you need to bear in mind and I emphasised this when I wrote about the new FPR.
    Efforts should always be made to resolve the case amicably, commercially and cost effecitvely and if one party wont, then the Judge can do something about it in costs orders although the general rule is no order.
    However, to obtain a costs order, you have to deal with the counter arguments.
    WHY wont the other side negotiate? What is causing the problem?Does the other side think the requests for settlement that you think are reasonable, are so high that its better to take a chance in court?
    I think litigants can sometimes get so entrenched and bogged down in what they want, they forget to stand back and look at it from the other side’s perspective. If they did, they then might understand why a judge more often than not is going to come down somewhere in the middle?

  11. To vary or not to vary... says:

    Please remind me what the overriding objective is… I assume it is something to do with ensuring all children of the marriage are looked after?

    The reason she refused is that she was bluffing. She did not think we would take her to court and so dug her heels in and would not discuss the issue save to re-quote the original order and threaten court if we did not pay her maintenance plus RPI increase. Our situation changed so for the meantime we are not taking any action but should our situation revert then we shall be forced to.

    The problem is caused in my case by the fact that she paid a lot of money to get an inflated joint lives maintenance deal and so will not relinquish that without a fight. However, may I ask – what is the view of a court where elder children who are provided for in an order (until 22 yrs) are not given any funds by the recipient of the maintenance while studying away from home? Or are given very minimal support while the party is residing in a large house and working minimal hours?

    Also if that party has given assurance in court that they would try and improve their financial situation via work opportunities and has not – are the courts wise to this?

  12. Kate says:

    Thank you for your informative blog , in short I have just finished 3 years of CSA Tribunal process and the respondant requested a variation to directions so I would see his bank/credit card statements, it has been a struggle for trbunal to get info from him . This was not allowed,
    I am now looking to file an application for lump sum provision to cover prior 14 years and future child needs. This will also include an application to recoup 12 years my
    ex partner avoided /evaided paying CSA maintenance. He was employed for the first 3 months of our son’s life, so he was assessed in 1997 and three months later he resigned and gained a £0 assessment and left the country and worked abroad self empolyed where I had no address to give CSA to chase him. He didn’t pay a penny to his son till 2008, when the 1997 arrears assessment were paid along with new assessments.
    Given this brief history, and reading this blog I feel mediation would be a waste of my time and money. I have been to a barister and solicitor and neither have made the common sense observations you have mentioned re Form FM1 – all have said to go the mediation route first. Please can you advise, since 6th April 2011 has the form FM1 been used as you logically argue and if so would my case be a suitable to use too?
    I long for some honest ,logical advice please………. I have waited 14 years to get to this stage I do not want to protract proceedings further if at avoidable.
    Thanking your advice in advance

    • Marilyn Stowe says:

      Dear Kate
      Generally, mediation is not an absolute pre requisite prior to proceedings unless legal aid is required and generally it may be of more use when all the financial disclosure has taken place there is an application before the court and it therefore has more teeth, although the FDR hearing is also designed to try and negotiate a settlement.
      HOWEVER! I cant give you any specific advise. If both your lawyers have suggested mediation they have done so because they know your case, they are advising you and for all I know they may have concerns as to the cost of proceeding, perhaps also as to the merits of your case generally or truly think mediation will settle the case, and think going to court is risky, costly and unnecessary. You must explain your concerns to them and perhaps ask for an opinion in writing so you can consider the advise at your leisure.
      Best wishes
      Marilyn

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