The relationship between mediation and court proceedings

News Article

Despite much recent publicity about mediation, members of the public are often unsure as to what mediation is and whether it is necessary before making an application to the family courts.

What is mediation? Mediation involves attending at a series of meetings with a trained family mediator with your former partner to work together to resolve your issues and reach a mutually acceptable agreement. This can avoid costly court proceedings or negotiations through solicitors and can take place before or after proceedings are issued.

Must I attend at mediation before applying to the family court? Technically the answer to the question is “no” but please read on.

New rules came into effect on 6th April 2011 supported by a number of practice directions. Practice Direction 3A deals specifically with mediation and applies where a person is considering applying for an order in relevant family proceedings, including applications for a financial order and applications relating to children.

Prior to making an application to the court in such cases, the applicant (or their legal representative) should contact a family mediator to arrange an information meeting about mediation and other forms of alternative dispute resolution (known as a MIAM)

The rules state that an applicant should attend a MIAM but there is no absolute obligation to do so. A person would not be expected to attend a MIAM if, for example, domestic violence has been alleged and this has resulted in a police investigation or the issue of civil proceedings during the previous 12 months.

If the parties are willing to attend together, the MIAM may be conducted jointly, or the parties may opt for separate meetings. Where a party is eligible, public funding may be available to meet the cost of the meeting and any subsequent mediation. If a person is not eligible for public funding they will have to meet their share of the costs.

If the mediation is unsuccessful and an application is made to the court, the applicant should file a certificate, signed by an appropriately qualified mediator, in Form FM1 confirming attendance at a MIAM or giving the reasons for not attending.

The courts are keen to encourage parties to use alternative ways of resolving their disputes (such as mediation) in appropriate cases. The court has the power to adjourn the entire matter until the parties have entered into mediation if they consider that this should have been attempted before proceedings were commenced, resulting in further delay.

This means that potential applicants should mediate unless there are good reasons not to do so. Prospective applicants should also bear in mind that mediation may prove to be an appropriate, cost effective and responsible way to resolve family issues themselves without enduring the stress of court proceedings.