Impact on MIAM’s
It has been a requirement for a number of years that before financial proceedings or children matters that the applicant, save for a few exemptions, is required to attend a Mediation Information and Assessment Meeting [MIAM]. Often by the time parties attend their MIAM, they have reached the stage of utter frustration and have felt that the only way forward was to go to court. The MIAM for some people became a mere hurdle to be overcome so that they could go to court, it was a tick box exercise.
Now when a client attends a MIAM they should have information to allow them to consider whether mediation or other forms of dispute resolution are a way forward to resolve their legal issues. This requirement also applies to the potential respondent, who is expected to attend a MIAM. Just because a party is a litigant in person it does not absolve them of using dispute resolution that does not involve the court process, known as Non Court Dispute Resolution [NCDR]
The Change
There is now a shift within the legal system to encourage potential litigants in family cases to use Non Court Dispute Resolution [NCDR] to resolve their differences. Parties are now expected to actively consider NCDR. The shift was succinctly set out by Mrs Justice Knowles in Re X (financial Remedy: non court dispute Resolution) 2024 EWHC 538 (fam)
“for those involved in family proceedings, whether concerning money or children, to understand the court’s expectation that a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate. Furthermore, I want to signal that, at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable.”
This shift is embodied in the change in the Family Proceedings Rules brought in on 29th April 2024 and in the spirt of encouraging parties to enter into discussion, the pre-action protocol sets out that lengthy and unnecessary correspondence should be avoided. Importantly it states that the first letter should consider the impact on the reader.
What amounts to a serious or reasonable effort?
This will depend on each person’s circumstances. There are still limited exemptions which would justify not attending a MIAM; domestic abuse, child protection and urgency. [Rule 3.8. Family Proceedings Rules 2010] However, the requirement to attend Mediation Information and Assessment Meeting [MIAM] has not changed, but this is not a form of Non Court Dispute Resolution, the joint Mediation session is.
If a potential litigant does not want to attend a joint mediation session they will have to actively consider other forms of Non Court Dispute Resolution such as arbitration, collaborative law or neutral evaluation. For example, if mediation is not appropriate, it does not mean that arbitration or advice from a single lawyer is not appropriate. The FM5 will require any potential litigant to justify why they need a court order and why another method outside of the court arena is not suitable. In order to complete this form litigants now will need to understand their options and decide whether any of the NCDR options could work for them before they litigate.
Family Proceedings
The parties are now required to file the FM5 7 days before the first hearing, whether it be finances or children matters. This form asks potentially difficult questions. It specifically asks the litigant to explain why they are seeking a court order if they have not attended NCDR. Or if they have attended NCDR, why are they now seeking an order? There is now an onus to justify the need to go to court. Furthermore, the court can direct that the FM5 is completed at any point during the proceedings.
Duty of the court
From the court’s perspective, the Family Proceedings Rule 3.3 requires that “the court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate” and the court can require that a party “must” fill out a form setting out their views on using non-court dispute resolution. The crucial words are “at any stage” of the proceedings the court can direct a litigant to reconsider all forms of NCDR. The court can delay the court proceedings to allow time for this happen. This may include the first hearing, at which the court may not timetable the matter for further hearings until a suitable NCDR route is attempted.
This is exactly what happened in NA v LA 2024 EWFC 113 Nicolas Allen KC delayed the substantive application for financial relief. He stayed the Form A and directed that the first appointment was therefore not to be listed until the parties sent to him a joint letter regarding NCDR and the way forward. Once received he would decide the best way forward. This case came before the court as a return date of an occupation order and potential freezing of assets. Matters were mostly resolved by undertakings negotiated at court and compromise on the Wife’s as yet unissued MPS/IPP and LSPO applications. I suspect that the Judge was wondering why this could not have been achieved without coming to court.
Costs
The implication behind the court powers is that the court can take into account a litigant’s actions when considering the issue of costs and how the litigation was conducted. It is especially relevant in finance cases. Again, there is a shift from the no order for costs principle.
The impact of FPR 2010 r28 (3) 7 (aa) is that failure to attend a MAIM or NCDR will be relevant to the issue of costs. I suspect that the FM5 may become another source of conflict as each litigant tries to justify their reasoning and blame the other party as to why another form of NCDR was not used. A client may feel that they have justifiable reasons for not attempting another form of NCDR. The onus is on lawyers representing parties to explore with their clients if in fact the reasons are justifiable. It must be remembered that the same standards are expected of litigants in person.
When a party is invited to a MIAM, it is worth remembering that this will be conducted by an authorised mediator, who will provide information about other forms of NCDR. Both the applicant and respondent will need to complete the FM5 form and there is a real prospect that if either party does not attend NCDR before the first appointment, there is a risk the court will delay matters to encourage the parties to use NCDR and with respect to financial proceedings, there is now an increase of cost orders.
Becket Chambers is able to offer mediation, arbitration and neutral evaluation. Please contact the clerks to find out more about the services we can offer.
