Mediation And The Family Court: New Rules To Spur Non-Court Resolution 

Published on 24 January, 2024 | Sarah Manning

Maintaining a family is not necessarily easy.

That’s particularly true when the relationship between parents becomes frayed or fractures altogether.

Divorce is, sadly, a reality for many men and women. According to the most recent figures from the Office for National Statistics (ONS), 41 per cent of married couples break up before they are able to celebrate their silver wedding anniversary (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021).

Whilst some are able to agree how best to split their joint assets or determine how best to bring up their children without acrimony, many more rely on family courts to provide definition and something of a framework.

Yet that only adds to the significant caseload which the courts have to deal with.

Last month, the Ministry of Justice (MoJ) revealed, for instance, that the number of separated parents applying for Specific Issue Orders – because they can’t agree on things such as where a child should live, be schooled, go on holiday or medical treatment – has increased by 77 per cent in the last decade (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2023/family-court-statistics-quarterly-july-to-september-2023#children-act—private-law).

Due to that added work, it now takes 45 weeks for matters relating to children to be concluded.

Ministers, the judiciary and family lawyers have been united in their belief that the answer to the obvious strain placed upon family courts lies in alternative resolution methods, such as mediation.

Before being able to take disagreements about their co-parenting relationships or the division of marital assets to court, individuals are required to take part in what is known as a Mediation Information and Assessment Meeting (or MIAM, for short).

The latest data shows that the use of mediation has increased (https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-july-to-september-2023/legal-aid-statistics-england-and-wales-bulletin-jul-to-sep-2023) but it’s still not enough to avert the strain felt by the family courts.

That could be down to some participants arguably not taking assessment meetings seriously and merely paying lip service to the process in order to be able to air their grievances in court.

As a result, the Government last year announced plans to make mediation compulsory to avoid “lengthy and combative courtroom battles” (https://www.gov.uk/government/consultations/supporting-earlier-resolution-of-private-family-law-arrangements/supporting-earlier-resolution-of-private-family-law-arrangements#foreword).

A further significant step has just been taken with a change in the Family Procedure Rules, the protocols which govern what happens in the family courts (https://www.justice.gov.uk/courts/procedure-rules/family#:~:text=The%20provisions%20in%20the%20Family,the%20remainder%20of%20the%20provisions).

Details of the shift were helpfully explained by the Lead Judge for Private Family Law, Mrs Justice Knowles, during a session to mark the start of this year’s Family Mediation Week of which I am Chair.

The changes effectively amount to a beefing up of the rules around MIAMs and provide both for more flexibility and more effective enforcement of the process.

Since the start of the pandemic, MIAMs have been available online rather than only as in-person sessions. However, for the first time, the Family Procedure Rules will formally acknowledge that.

If judges believe that someone hasn’t taken MIAMs seriously enough, they will be able to pause proceedings and compel them to go back to an assessment meeting.

Furthermore, removing the loophole dating from the pandemic which allowed some people to avoid the awareness sessions altogether if they lived more than 15 miles apart is another step forward.

There is now also an expectation that court will continue to scrutinise attempts at non-court dispute resolution at each hearing. If judges do not believe those methods are being taken seriously, they have the discretion to make a costs order against the individual who might not be committing to the process.

I sincerely hope that this latest change will help parents and separating spouses realise what I believe to be the clear and undoubted merits of mediation.

Mediation is certainly quicker, cheaper and less formal than pursuing a claim via family courts which, as I’ve pointed out, are overburdened with work.

That is why successive governments have been so keen to promote it as a way of resolving disputes.

Whilst I am confident that many people who learn of mediation’s benefits will commit wholeheartedly to it, those tempted not to will perhaps think again because of a prospect of further delay and potential expense.

As Mrs Justice Knowles highlighted and mediators like myself know full well, court should be the last resort for separating families to settle their differences and not their first choice.