The changing face of family law

This spring will bring significant changes in family law that are aimed at advancing and promoting mediation and other forms of non-court dispute resolution (NCDR) as the go-to way to resolve issues arising upon the breakdown of a relationship.

From 29 April 2024, amendments to the Family Procedure Rules 2010 will take effect to put NCDR under the spotlight for court users and practitioners alike; not just at the outset where parties take initial steps to resolve disputes, but on an ongoing basis throughout private family law proceedings.

Changes to the use and scope of MIAMs

A mediation information and assessment meeting (MIAM) is an initial meeting with an accredited mediator to consider whether mediation is the right way to resolve your dispute. Family proceedings cannot be issued unless the applicant has attended a MIAM and therefore properly considered mediation as an option.

MIAMs were introduced to encourage people into mediation, where appropriate. Unfortunately, MIAMs have often been seen as a hoop to jump through to enable litigation, rather than a meaningful opportunity to avoid it.

The scope of MIAMs will broaden so that attendees are informed about the range of NCDR options available (not just mediation) including arbitration, early neutral evaluation and collaborative law; why they may be more appropriate options in their case and how to proceed with them.

MIAM exemptions are available in certain circumstances, enabling parties to move straight to court proceedings, avoiding a MIAM where it would not be appropriate, for example, where there are safeguarding concerns.

However, parties are often left feeling wronged by the other side’s incorrect reliance upon a MIAM exemption to initiate proceedings. This leaves them embroiled in court proceedings, where had there been an examination by the court of the MIAM exemption claimed, they may have been encouraged back into mediation at the outset instead, rather than languishing in the court system, watching their costs rack up and time drag on with no resolution in sight.

The amendments aim to strike a balance between encouraging NCDR, without being compelled to engage with it in unsuitable circumstances.

From April MIAM exemptions will be tightened up. Parties can expect a more thorough judicial inspection of the exemption(s) relied upon, with a possible adjournment of proceedings and re-direction to NCDR where the court does not feel the exemption has been correctly used and/or there has not been a genuine effort to settle out of court.

Importantly, the amendments also update the language used in relation to MIAM exemptions from ‘domestic violence’ to ‘domestic abuse’. This development reflects the judiciary’s understanding and insight into domestic abuse taking many more forms than physical violence and that while there is a focus on steering parties away from litigation and into NCDR, it will not always be appropriate to do so. Safeguarding must remain a priority.