Family Law

What impact will the new mediation imperative in the Family Procedure Rules 2010 have in international cases?

On 6 April, 2011, England and Wales has a new procedural set of rules with new ancillary practice directions and very different forms. It will bring English family law procedure much more into line with the civil courts. In classic own goal style, the rules and most practice directions have only just been published with some not yet finally agreed!

The opportunity has been taken to introduce the explicit power to the family court to adjourn existing proceedings at any stage for mediation or other ADR. This power was in the Family Law Act 1996 but fell victim when the no-fault divorce legislation was not introduced. Many of us have called for its introduction ever since and this is an excellent development. It will have minimal distinctive impact on international cases.

At the same time a Pre-Application Protocol requires that before commencing family court proceedings all parties must see a mediator as part of a Mediation Information and Assessment Meeting to see if mediation might be suitable. What impact will this have?

First and foremost, it only applies to financial and children proceedings, with a few exceptions such as enforcement proceedings. It does not apply to divorce, civil partnership and similar proceedings. Therefore in a Brussels II race to issue, there is no requirement for the information meeting before the commencement of proceedings. The mediation initiative does not inhibit issuing fast, and first.

For finance and children proceedings where speed is of considerable importance, there are 14 exemptions from the requirement first to see a mediator. Exemption No 10 is when the prospective application is urgent meaning (a) there is a risk to the life, liberty or physical safety of the applicant or his or her family or his or her home; or (b) any delay caused by attending a Mediation Information and Assessment Meeting would cause a risk of significant harm to a child, a significant risk of a miscarriage of justice, unreasonable hardship to the applicant or irretrievable problems in dealing with the dispute (such as an irretrievable loss of significant evidence). Child abduction proceedings, Hague and non-Hague, are likely to be covered on the basis of risk of significant harm to a child by any delay and a significant risk of miscarriage of justice. A financial application made at the same time as the issue of the divorce petition, a frequent practice in international cases, is also a candidate for this exemption. There is nothing to prevent the mediation information meeting or mediation itself taking place once the proceedings have started. Indeed suggesting mediation without first securing jurisdiction could be prejudicial. International family lawyers in England will need to be aware of the particular exemptions from the need to see the mediator before commencement of proceedings. Care in completion of the relevant Form FM 1 will be vital.

This is an incredible and much-needed boost for cross-border mediation and other ADR. Being an international case does not automatically mean ADR is unsuitable, as the successful pilot mediation project in child abduction proved. Certainly it requires very experienced international mediators, sometimes in separate jurisdictions and sometimes in the co-mediation model especially in children cases. It requires specialist advice before mediation and considerable skill and flexibility in setting up and conducting a mediation. A number of firms like The International Family Law Group have set up specialist international mediation units with both finance and children mediators and collaborative lawyers. International cases have often been stigmatised with high, disproportionate costs and backward looking litigation. This mediation imperative is an excellent opportunity to show that ADR has a place on the English international family law scene as well as the national.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.