Do I Have To Go To Mediation?

This is a question often asked of members of our Family Team by clients who are separating or divorcing. In this article, our Head of Family and accredited mediator, Joanna Toloczko, clarifies the requirements regarding mediation. 

Background

In March 2023 a consultation was launched by the government to consider whether mediation should be made compulsory for separating couples. In January 2024 the government published a response which concluded that mediation should not be made compulsory, but resulted in several changes to the Family Procedure Rules (the rules governing the conduct of family cases) aimed at strengthening mediation and other forms of Non-Court Dispute Resolution (NCDR).  These changes came into force at the end of April 2024.  

The Family Procedure Rules require parties to attend a Mediation Information and Assessment Meeting (MIAM) before they commence court proceedings, unless an exemption applies. The aim of a MIAM is to ensure that the parties consider the possibility of mediation before involving the court.  The amendments to the rules strengthen the existing rules and aim to limit reliance on exemptions. 

What Happens at a MIAM?

The mediator will see the parties individually for a MIAM. It can be done in an in-person meeting or online but must not be done by telephone unless there are exceptional circumstances. It will normally take around an hour.  

During the MIAM the mediator will provide the client with detailed information regarding the principles of mediation and the process. This is so that the client can make an informed decision as to whether they wish to try mediation.

The mediator will also conduct safeguarding checks to ensure that the mediation may take place safely without putting anyone (including children) at risk. 

The mediator will check whether the client is emotionally ready for mediation and whether the client has any signposting needs. This may include signposting to a solicitor, therapist or other family law professional.

The mediator will also explore the matters which the client wishes to resolve as part of the mediation and discuss the challenges that may be experienced.

The MIAM is also an opportunity for the mediator to begin to establish a relationship of trust with the client.   

If the couple both wish to attempt mediation and the mediator considers that the case is suitable for mediation, the couple will then progress to the joint mediation sessions. 

If one or both of the parties do not wish to mediate or the mediator does not consider the case to be suitable for mediation, the mediator will the provide the parties with the certificate they need to make an application to the court.  

The New Requirements

Other NCDR methods 

In addition to mediation, mediators are now required to discuss other forms of NCDR with clients during the MIAM. This will include the following:-

Collaborative Law – each spouse/partner instructs a specially trained collaborative lawyer and the couple and the lawyers work together as a team in a series of meetings to achieve a mutually satisfactory settlement.  

Early Neutral Evaluation – the lawyers for each spouse/partner present their case to an independent specialist who will express a view on the likely outcome of any proceedings. This does not bind the parties but usually assists them to agree a settlement.  

Arbitration – the parties agree on the identity of an independent arbitrator who fulfils a very similar role to a judge. The parties and their lawyers retain control over the process. The arbitrator will make an Award to determine the case. 

The FM5 form

For all family law applications issued after 29^th April 2024 the parties must file an FM5 form setting out whether they have attended NCDR; if they have, why proceedings have been issued despite this; if they have not, why not. 

Judges have also been given the power to stay proceedings to allow for NCDR to take place.  Previously, this could only be done with the consent of the parties.  

Costs

In financial remedy proceedings the court is also able to ignore the general presumption of “No order as to costs” (which means that each party pays their own legal costs). The court may order one of the parties to pay the legal costs of the other where it considers it appropriate to do so because of the party’s conduct in connection with the proceedings. The new rules make it clear that conduct will include a situation where one party has failed to attend a MIAM or NCDR.  

Conclusion

Although mediation is still not compulsory, there is an obligation on parties to family law proceedings to give serious consideration to the use of mediation and other NCDR methods prior to issuing proceedings. The minimum requirement is to attend a MIAM, unless an exemption applies. 

Although not all cases will be suitable for mediation, mediation has considerable benefits over the traditional legal process. Even if a case is not suitable for mediation, there are many other NCDR methods that may be suitable and should be considered prior to the issue of court proceedings.