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Young Lawyers - Mandeep Dhami: Should parties to family disputes be required to mediate?
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May 4, 2011, 12:35 PM
Article ID :94707
For a number of years mediation has been recognised as being a form of alternative dispute resolution. In appropriate cases it has been an option considered by parties as a way of trying to compromise their family disputes. I recall that since the days when I was a trainee solicitor, I quickly noticed how mediation was being endorsed where ever possible by various people involved in the family law world and public sector agencies.
Part 3 of the Family Procedure Rules 2010 now means that in the vast number of family proceedings, parties will be required to receive information about the benefits of alternative dispute resolution before commencing family proceedings. They must now attend what is known as a Mediation and Information Assessment Meeting (MIAM).
With mediation being the most common form of alternative dispute resolution for family law matters, it seems to me that this will continue to be an option considered by parties when looking to satisfy the obligations imposed by the new rules.
However, as there are only a limited number of instances under the new rules when attendance at a MIAM is not required, I believe that one has to stop and consider whether the new rules are too onerous in cases where it is clear that mediation or other forms of alternative dispute resolution will simply not work?
My feeling from reading the rules is that in many cases the parties involved will not be able to show that their case falls into the limited exceptions of not having to attend a MIAM. This will inevitably slow down the process of issuing proceedings. As a result parties who have genuinely only sought legal advice and assistance as a last resort may be left feeling frustrated and resentful at having to undergo the Part 3 requirements before having a Judge hear their case. I consider that parties may also be left feeling this way given that they are expected to fund the costs associated with the requirements of Part 3 themselves (unless they are in receipt of Public Funding).
I wonder whether the accepted view that mediation is only likely to be successful if both parties freely enter into it will be undermined by the new requirements.
I question how many cases will settle as a result of these new rules in circumstances where parties feel that they are being bulldozed by the "system" into going through this new process? Will some parties simply go through the motions in order to be able to get their case before a Judge?
On the other hand the requirement to attempt mediation has already been in existence for some time for parties who wish to apply for Public Funding so it seems that the new rules just somewhat bring other cases in line with this.
It is of course yet to be seen what the actual impact of this part of the new rules will be. I anticipate that these new requirements are welcomed by the Judiciary and Judges up and down the country will regularly use their new powers to adjourn proceedings so that the parties can mediate. Overall my view is that the new rules will certainly serve a useful purpose in those finely balanced cases where the parties aren't really poles apart and just need somebody to come in and spend some time with them to narrow the issues between them. On the other hand, in those cases where it is simply not possible to settle, the rules will be another hurdle that parties will have to overcome before having their case adjudicated on.
Family Law Social Event: The New FPRs in Practice - Are They Working?
If you would you like to debate these issues with colleagues, Family Law is hosting a free networking evening in Bristol on Tuesday 24 May to allow practitioners to discuss the impact and effect of the Family Procedure Rules. An experienced panel will provide their insights on the new rules and answer any of your questions. Attendees will be entitled to receive 1 CPD hour. For more information and to book, click here.