Family Procedure Rules 2010: Mediation & the Devil in the Detail
This week I am examining the Family Procedure Rules 2010, drawing out what I believe to be the most important changes for practitioners and clients. Today I would like to begin by looking at the Rules’ Overriding Objective (page 24). This is the new statement with which the Family Procedure Rules begin. It states:
These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
This mirrors the overriding objective which applies to civil cases, with the exception that it makes reference to “welfare issues”. Children and the incapacitated may be “welfare issues”. And any “welfare issues” will always take precedence over the Overriding Objective.
Rule 1.1(2) explains what it means to “deal with a case justly”:
Dealing with a case justly includes, so far as is practicable—
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
Rule 1.3 states:
The parties are required to help the court to further the overriding objective.
If you ever thought you could simply sit back and let the law take its course, think again. It’s all hands to the pump. As for “dealing with a case in ways which are proportionate”: what does it mean?
Well, according to the new Family Procedure Rules, parties are expected to cooperate fully and help the court by being proactive. They must not delay or prevaricate. They must keep a sense of proportion. They must give full frank and honest disclosure all the way through the case. They must help the court to determine a case justly. They must always be prepared to try and settle their dispute by using alternative routes to the courtroom.
Alternative dispute resolution (ADR), including mediation, looms large from the outset.
Rule 3.2 (page 35) states:
The court must consider, at every stage in proceedings, whether alternative dispute resolution is appropriate.
In most cases, “assessment for suitability” for mediation, prior to the commencement of proceedings, is a prerequisite.
Before an applicant makes an application to the court for an order in relevant family proceedings, the applicant (or the applicant’s legal representative) should contact a family mediator to arrange for the applicant to attend an information meeting about family mediation and other forms of alternative dispute resolution.
Some people are already confused about this and think that a full-blown mediation itself must happen before an application may be made to the court. That is incorrect. See the Pre-Application Protocol annexed to Practice Direction 3A for further information. You will note that in cases that involve violence for example, or require emergency action, no prior assessment is required at all. You will also note that after contacting three mediators within 15 miles of the applicant’s home, if none of them can see the applicant in the next 15 working days, then it won’t apply either.
Note that when a mediator does arrange a Mediation Information and Assessment Meeting with one or more parties to a dispute, costs could be incurred:
A mediator who arranges a Mediation Information and Assessment Meeting with one or more parties to a dispute should consider with the party or parties concerned whether public funding may be available to meet the cost of the meeting and any subsequent mediation. Where none of the parties is eligible for, or wishes to seek, public funding, any charge made by the mediator for the Mediation Information and Assessment Meeting will be the responsibility of the party or parties attending, in accordance with any agreement made with the mediator.
These costs could be incurred in what may turn out to be a fruitless waste of time. I think this will probably be the case for many couples, hot under the collar and distrustful of each other, one of whom may also be far more powerful than the other.
What also troubles me, as I have previously noted, is that on 6 April 2011 there will be very few mediators in England and Wales who are qualified to undertake these Mediation Information and Assessment Meetings.
So what’s the answer? The devil is in the detail.
When an application is ultimately made to the court, a Form FM1 must be lodged with the court. It should be completed by the mediator if there has been an assessment, explaining why the mediator considers the case unsuitable for mediation. If there has not been an assessment, it can be completed by the party or their legal adviser. Part 4 of the form gives the applicant room to explain why the protocol has not been complied with by the applicant.
It seems to me not unreasonable for a party to state that he or she is prepared to mediate. However this is only after court-ordered disclosure, given concerns as to say the respondent’s veracity, or the complexity of the case (and most cases are far from straightforward). Therefore he or she is unwilling to incur the costs and delay of a mediation assessment beforehand.
The issue of proceedings is specifically not to be regarded as a hostile step. (See the Pre Action Protocol annexed to Practice Direction 9A.) So why would refusing to participate in mediation from the outset, but being willing to proceed on a fully informed basis following completion of disclosure, be anything other than appropriate? It puts both parties on an equal footing, is fair, proportionate, saves costs and is fully in line with the Overriding Objective.
As 6 April is only days away, I requested a comment from the Ministry of Justice on the position, for readers of this blog. On this occasion my request was declined. Perhaps the date will be moved back. Perhaps we will find that Part 4 is completed by a very large number of applicants indeed.
At this point I recall that Lord Neuberger, Master of the Rolls, gave a speech in November in which he warned, “Mediation is a complement to justice. It cannot ever be a substitute for justice”. Don’t his words stand in contrast to the Government’s plan to cut costs by promoting alternative dispute resolution? Perhaps the judiciary is already a step ahead of us.
How powerful is the court in family proceedings? Find out tomorrow…
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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