Family Mediation

There have been major delays in having cases heard at the Family Court.  Often cases are adjourned at short notice. Court delays are only increasing.  So how will the new changes introduced on 29 April 2024, relating to engaging with mediation before making any application, impact upon you and the courts?

Unfortunately it is a brutal fact that due to the high volume of applications, the court is simply unable to service all cases without significant delays occurring somewhere and for someone.  Many applications are being made by litigants in person (being people without legal representation) and therefore sometimes alternative forms of dispute resolution are not fully explored.

Although attendance at a Mediation Information Assessment Meeting was made compulsory before an application could be made in court (with the exception where an exemption applied) back in 2014, this failed to alleviate the pressures on the court system as many applicants were merely attending as a tick box exercise.

On 29 April 2024 this all changed.

What Are the Changes?

 The definition of Non-Court Dispute Resolution (NCDR) has been widened.

1. Parties must actively engage in NCDR and provide evidence of doing so.
2. Any party who unreasonably refuses to engage in NCDR will be at risk of a costs order being made against them.  Normally there is a principle of ‘no order as to costs’.  The extent to which costs orders will be made will be seen with time.

In short, mediation is now positively expected and encouraged by the Family Courts, and if you refuse mediation without very good reason, then you could be facing a costs order at Court, regardless of the eventual outcome of the litigation.

How to Evidence NCDR?

Although the following list is not exhaustive, by either:

1. Attendance at Mediation;
2. Arbitration; or
3. Collaborative Law.

Attendance and engagement has to be shown by lodging a new form FM5 at least 7 days before the first hearing in an application.  Parties must show why NCDR isn’t appropriate to resolve their dispute or, if attempted, why NCDR has not been successful.

We would suggest that mediation is an excellent alternative to litigation and was a valuable tool even before the new rules came into effect.

Mediation is the process in which a mediator (being an objective and independent but expert third party) can help disputing parties to reach a voluntary resolution to their dispute outside of Court. The mediator facilitates discussions and negotiations between the parties to assist them in reaching a voluntary settlement. A family mediator can assist on disputes concerning children, and on financial splits (including property) on separation or divorce.

If you wish to have a chat about mediation, our family solicitor and mediator can be contacted on 01189 575337 or by email at S.Tufail@hewetts.co.uk

Published on 23/05/2024