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.

Ongoing consideration of NCDR and costs consequences

Amendments to Part 3 of the Family Procedure Rules (FPR) give the court the discretion to order the parties to file and serve a form setting out their views on using NCDR to resolve any issues at any point in the proceedings.

This gives the court the ability to put litigation on hold until the parties have genuinely engaged with NCDR, if they have not already done so and where the court feels they could or should have. Previously the parties would need to agree to an adjournment for NCDR purposes. This will no longer be the case.

Amendments to Part 28 of the FPR provides that in financial remedy proceedings, if the court finds that a party has failed to attend a MIAM or NCDR without good reason, this could justify a departure from the general principle that each party pays their own costs. The court could, therefore, make costs orders against those who have chosen litigation over NCDR without good reason.

It will be interesting to see how these changes unfold over time and whether it can stem the tide of those at the door of court. It is an opportunity to step towards the early and cost-efficient resolution of family disputes, which can only be a good thing and also help alleviate some of the downward pressure on our court service, while encouraging alternative, constructive forms of dispute resolution, which will help reduce costs for separating couples.