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Is Mediation Compulsory in Family Law?

By 12th June 2024 No Comments

The voluntary nature of mediation is one of the corner stones of it’s success.  This is why mediation is currently not compulsory in Family Law.

There has been much debate recently about whether or not mediation should become compulsory in family law proceedings.  With court backlogs increasing and timescales for court resolution growing longer, the thought of making mediation compulsory would, at first glance, seem quite appealing.  However, during a consultation process with the Ministry of Justice, members of the Family Mediation Council (FMC) voted overwhelmingly in favour of keeping family mediation voluntary for those involved.

Why should Mediation remain voluntary?

As members of the Family Mediation Council (FMC), we firmly believe mediation should be a voluntary process rather than compulsory. The success rate of mediation would significantly reduce if parties were made to attend against their will.  The key to any successful negotiation is two parties entering into a conversation with a shared goal to identify an outcome which suits both.  Where one or both parties don’t want to be there, the mediation process is frustrated and will undoubtedly fail.

What IS compulsory in Family Law?

In 2014 the Legal Aid, sentencing and Punishment of Offenders Act (LASPO) made it compulsory for anyone wishing to make an application to court in family law proceedings to attend a Mediation Information and Assessment meeting (MIAM) with an accredited family mediator.  During the MIAM the mediator will assess whether or not mediation is appropriate and the applicant can decide if mediation is something they would prefer to do as a quicker, cheaper, alternative to court. In the event mediation is assessed as unsuitable, or the client chooses not to proceed, the mediator will sign the applicant’s court application form to confirm mediation has been considered.

Recent changes to MIAM

On 29th April 2024 new Family Procedure Rules were introduced, making it explicitly clear that any party to Family Law Proceedings should have attended a MIAM.  Whilst this has always been the case since LASPO, there were some exemptions. These exemptions have been significantly modified under the new rules. For example: previously, under the old rules, if a party couldn’t get a MIAM appointment with a mediator within a 45 minute radius of their home, they would be exempt. Under the new rules, parties would have to show they were not able to obtain an online MIAM appointment and they would need to evidence having contacted five different mediation practices in order to obtain an exemption.

What does this mean for overseas applicants?

Crowther Mediation operates internationally. With an office the UK and in the UAE, we are ideally placed to help clients all over the world. Many clients wishing to issue divorce proceedings in the UK, whilst living abroad, would previously have fallen under the old exemption. However, our international clients now need to attend a MIAM online.

With these new rules, the MOJ have made their views on the use of mediation in family proceedings very clear. There is a clear expectation on all parties to attempt to resolve disputes outside of the court process.

Parties in family law proceedings need to be aware, failing to attend a MIAM or show a willingness to resolve issues through ADR, may result in a wasted costs order being made further down the line in court proceedings.

In short, mediation is not compulsory, but attending a MIAM is.  Given the impact this will have on expats wishing to issue proceedings in the UK, it is imperative they and their legal representatives choose International Family Mediators, who have an understanding of jurisdictional and cultural issues.  In the event the parties proceed to mediation, the assistance of an internationally recognised mediator will prove invaluable.

If you would like to speak with one of our mediators please contact us on [email protected] or [email protected]