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A seismic change in ethos and practice

Date:10 MAY 2024
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Consultant & mediator

Caroline Bowden, a member of the Private Family Law Early Resolution Working Group which first examined what changes were needed, looks at the effect of the revised rules on everyone working in family law, both in and out of court.

Why change the existing FPR?

It has been there for years: the court’s requirement in Part 3 of the Family Procedure Rules 2010 (FPR) to consider whether non-court dispute resolution (NCDR) is appropriate at every stage.  Specifically, the court had a duty to take into account:

  • whether a mediation, information and assessment meeting (‘Miam’) took place, or
  • whether a Miam exemption was validly claimed, or
  • whether the parties had already engaged in NCDR.

However, it is widely recognised that these rules have been ‘honoured in the breach’.  The changes to the FPR however come with teeth, commitment and boosted judicial training.

There will be a presumption throughout this article that the families affected by these changes are those where Miam attendance and/or NCDR will be suitable.  Court is always needed for situations where nothing else can work. 

There are both good reasons to refer to NCDR and bad reasons to keep matters in court.

A good reason is that, for the suitable couples, most forms of NCDR are better than being in court (setting aside the issue of expense for now).  It is time for those of us running these services to be less shy about stating this.  It is not enough for judges to encourage Miam attendance and NCDR just to get couples out of their courts.  They need to believe in it too.

Judges now have a legal steer to talk positively about Miams, so it would be good if this was genuine.  When considering whether parties should attend a Miam, a reason added to the FPR is the court having particular regard to: ‘the potential benefits of attending a Miam, including the opportunity to receive information about options for NCDR’. 

Sadly, many in the legal profession assess mediation only by the oft-repeated stories of poor practice, but of course those anecdotes are bound to travel furthest and longest. Equally they see many Miams as failures, since couples in court are by definition those who have not stuck in mediation or NCDR.  Often a Miam may come at too late a stage, or with only one party attending before court.  The mediation participants who come direct to mediation and settle there are all invisible to barristers and judges.  It is a great joy as a mediator to see couples settling all their issues and preserving their relationship as parents too.  According to raw data from the voucher scheme, this happens in 77% of mediations, either in whole or in part.  Absolutely no interaction with the justice system will ever be needed for most of these mediation successes, other than perhaps a subsequent financial consent application. 

The government’s consultation on mediation in 2023 noted that the mediation voucher scheme saves HMCTS £21.1m year and Cafcass/Cafcass Cymru £3.8m a year.  It concluded that: ‘Mediation can be a quicker, less adversarial, and more cost-effective option for many people if they can reach an agreement. This can result in better outcomes for separating families and, more importantly, for any children involved in these disputes.’

Not all court diversion can be handled by Miams though.  The primary gatekeepers of the non-court space are overwhelmingly still solicitors (including other lawyers working within their firms). Why have there been so few referrals by practitioners to other (non-mediation) NCDR services, since the solicitors themselves can stay involved in the process?  There are many examples of excellent practices, but do the majority of solicitors believe in the benefits of NCDR in all its forms?  It will be no good if mediators signpost participants to a form of NCDR that starts with solicitors, only for the participant(s) to discover that their chosen solicitor never does, or is ever prepared to do, anything other than correspondence and court. 

The bad reasons to keep matters in court are now so clear as to be the most likely driver of the success of these changes. They include:

  • The crisis of the courts, made worse during Covid;
  • the need for couples, parents especially, to find a better way;
  • too many people being forced to represent themselves after LAPSO.

So judges, solicitors, mediators and others should all come to believe in the benefits of Miam attendance and NCDR, whilst scarcely needing reminding of the disadvantages of being in court. 


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How can a Miam help?

Taken from the CAP review summary, a Miam includes much more than an assessment of the suitability of mediation or other forms of NCDR:

  • the mediator can pick up on domestic abuse (sometimes being the first to make victim aware of this), child protection, mental health issues, disabilities or other vulnerabilities;
  • emphasis on co-parenting responsibilities, the long-term welfare of the child and the possibility of child-inclusive mediation;
  • empowering messaging about finding child-centred solutions, moving away from justice/control-type thinking;
  • risk to the child of long-term conflict;
  • nature of a court application (dispelling any incorrect presumptions);
  • an information exchange in order to provide tailored legal and other assistance;
  • links to other support services such as parenting programmes, counselling, domestic abuse agencies and early legal advice.

Miams have evolved over time and must now be a minimum of 45 minutes long, but normally they are far longer than that.  The rigorous and mandatory standards, introduced in 2022 for all mediators regulated by the Family Mediation Council (FMC), go much further and wider than the FPR’s rules on Miam conduct.

The FPR changes are an opportunity to explain that a Miam is far more than just a court-diversion scheme: it has a significant and valuable role in providing triage, support and managing (legal) expectations, even if an NCDR service does not then follow.

How much NCDR is happening now?

NCDR is now defined much more tightly as:  

‘methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law.’

The previous definition was a vague ‘methods of resolving a dispute, including mediation, other than through the normal court process’.

So, there is a greater spotlight on the specific named services. What does this market of NCDR services look like?

Statistics are hard to come by.  However there are some pieces in the jigsaw:

  • Up to September 2023, there were 647 registered arbitrations from their inception (2012 for finances and 2016 for children cases);
  • There are no numbers for collaborative law, but the decline is well known, though there are attempts at its revival;
  • There are no numbers for early neutral evaluation (‘ENE’) and private financial dispute resolution (pFDRs), which are mainly used for financial cases.  Perhaps they are around the same volumes as arbitration, as they serve a similar cohort of wealthier participants, in mainly financial cases.
  • Mediation volumes are not counted, other than via cases either with the voucher or legal aid.  Legally aided work is declining, not because of the lack of demand, but a diminishing supply of mediators, who struggle to survive on 2004-fixed remuneration rates. 

There were 15,330 voucher claims from March 2021 to March 2023. Not all mediators claim the voucher and it does not cover finance-only work.  Any attempt to guess overall mediation rates beyond that would just be speculative. 

In 2021, there were 56,754 court applications for child arrangements orders and 12,438 contested financial applications. However, there were 36,228 applications for financial consent orders. One hopes that this largely represents a triumph of out of court solutions and less the botched DIY applications that needlessly lock up judges’ time to unravel. 

To use the FPR changes to shift from a court-based mindset to an NCDR mindset, what must those within the system do to change?

Judges and court staff

Judges are likely to take their role of scrutinising each party’s view of NCDR much more thoroughly than before.

The newly amended Practice Direction (PD) states that the FDR do not give the court the power to ‘require’ parties to attend NCDR but adds that court can ‘consider’ such a step.  The judges might also have more confidence in applying a robust degree of judicial persuasion after the civil decision in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 overturned the Halsey ruling that a court could not compel parties to mediate.

With a muscular and consistent review of whether parties need to be before them, judges themselves will set the new change in tone and ethos.  This message will then cascade down to solicitors, even those who are most oblivious of NCDR, that their habits need to change.  This would reverse the message that has been sent out when judges have kept NCDR-suited parties in court just because ‘they are here now’.

Solicitors

There is a lack of NCDR activity amongst solicitors as mentioned previously.  Will the FPR changes in judicial scrutiny be enough to alter hearts, minds, and habits?

There are roughly 16,000 solicitors listed in England & Wales for general family law advice: some may not work full-time in that area, but it does not include others within their firms.  These numbers make them far and away the primary gatekeepers with separating families in the non-court space.  They have unfettered freedom to steer clients either towards or away from NCDR options, at any point in their instructions.

Many mediators and good solicitors are aware of other solicitors who seek to avoid Miam referrals at all costs, or coach their client to come just to tell the mediator why NCDR is not appropriate. Though preservation of fee income or targets can be the reason, a happier client will tell others.

Now that judges and mediators have had their Part 3 obligations rebooted by the FPR changes, is it time for solicitors to have regulation in place, voluntary or otherwise? This could take the form of a charter, pre-action protocol, rules, regulations or standards. Most of these have already been suggested, when considering how solicitors should curate clients in the out-of-court space.  

One of the most enduring proposals is the Family Solutions Initiative (FSI), previously ‘the Surrey Initiative’.  Two of those behind it, Karen Barham and Rhys Taylor, were on the FPRC working group that initiated the FPR changes.  In their article, with colleague Martin Kingerley KC, [”The Family Solutions Initiative – a response to a system in crisis – [2021] Fam Law 518] they ask how solicitors might be better regulated, to ensure good practice in relation to NCDR. 

They note that: ‘practitioners play a key role in providing their clients with sufficient information from which to base considered decision as to their engagement or otherwise in non-court based processes. The failure of a practitioner to assist a client's decision making in this regard is likely to result in negative repercussions for a practitioner in certain circumstances.’

They recommend a protocol for solicitors to follow, with drafted precedent letters, in order to keep NCDR options at the forefront of both the solicitor’s mind and their client’s.  They propose that a judge could scrutinise the Part 3 communications and also suggested the ‘regulated professional body’ (presumably the SRA) might be interested if the provisions are not followed. 

The 2021 article stated that the FSI was under the ‘active consideration by representative and regulatory bodies’. Whether this is still the case is unknown.  There could be a working group set up, along similar lines to the one which brought about the current FPR changes, to look at how solicitors might proceed with a more structured and boundaried approach to out-of-court behaviour towards NCDR.

The alternative voices calling for solicitors to conduct Miams are as distracting as the idea is likely to be unworkable.  It is best for solicitors to look to put their own NCDR house in order, rather than ‘marking their own homework’ (less mediators’ tailored accreditation, standards and regulations) by conducting Miams. 

Mediators

The early investigations into the FPR changes overlapped in time with the introduction of new FMC Miam standards.  The FPR changes to the conduct of Miams have therefore not resulted in any additional obligations to mediators.  However it is helpful to spell out the obligation to discuss all relevant forms of NCDR to a wider audience.

There is one elephant in the room when discussing NCDR options and that is the issue of affordability.  Many Miam participants either have limited budgets or are budget conscious. If they have not come to Miams via solicitors (where court diversion options should already have been discussed), then mediators often have a hard task in convincing participants to engage in NCDR services that are lawyer-led and can be significantly more expensive than mediation.  Equally, they have to battle against the perverse incentive of the bargain price of court: for just a few hundred pounds, the unrepresented gain access to a process that guarantees a final, legally binding outcome.  Mediators walk this tightrope constantly.

The new rules are a reminder to mediators that they have a duty to fully understand all forms of NCDR, so that they can talk with knowledge and confidence about them where appropriate and affordable. The government’s proposals to provide more training for domestic abuse screening is also very welcome. 

Respondents

The respondents who do not attend Miams or instruct solicitors will force an applicant to issue at court.  Perhaps in future Miam attendance could be made compulsory for respondents, rather than as now, an ‘expectation’ (a view shared by the President in his 2022 John Cornwall lecture.)   The court can require a respondent to attend a Miam after an application is issued, but it is better to catch them earlier.  This issue got lost in the debate about compulsory mediation.

It would help if the courts produced a pdf/leaflet to state the expectations on a respondent.  It could explain the benefits of NCDR and Miam attendance and the risk of criticism if not considered. This could then be used by mediators and solicitors too.  If a judge quizzes a respondent about non-attendance at a Miam or NCDR, it would not be good to hear them say: ‘no-one told me I should’.

Online tool, offline resources, Hubs and HMCTS

All messaging, through whatever medium, can play its part in shifting attitudes and understanding. The government has announced a review of the messaging on court forms, but this could extend to the proposed new online tool, all offline resources and direct communication with would-be litigants.  Whilst shedding a positive light on NCDR, there could also be a link to the current average times to resolve matters at court, to manage expectations.

The nerdy bit

When first trying to get to grips with these changes in January 2024, there were no resources showing the new wording integrated into and altering existing provisions.  So I created my own, together with a tracked-change draft of what the Form C100/ Form A Miam exemption paragraphs might look like, plus a table of the Miam exemption changes. These are wrapped in two blogs: https://anthonygold.co.uk/latest/blog/fpr-and-pd-tracked-changes  and https://anthonygold.co.uk/latest/blog/Miam-changes-exemptions-evidence-and-court-forms.  These will be superceded by the authoritative documents. Since they were only ever intended for early guidance on the detail, they therefore cannot be relied upon.

I now run through the rules themselves, highlighting the significant changes within the FPR.

Summary of the key FPR changes

  • Fewer reasons not to attend a Miam, especially:

    –        with a tighter definition of previous NCDR;

    –        delay-based hardship now only linked to significant financial hardship;

    –        as Miams can be online, inaccessibility exemptions are reduced.

  • Domestic abuse not domestic violence
  • Abolition of Miam exemptions linked to non-attendance of the respondent.
  • Abolition of all mediator-granted exemptions.
  • Proof of a Miam exemption will be needed.
  • Early scrutiny of Miam attendance or Miam exemption.
  • Constant court scrutiny of views on NCDR, via a standard form before all hearings and otherwise.
  • Use the natural gaps in hearings for a judge to encourage Miam attendance or NCDR.
  • Beefed up cost orders in financial proceedings for failure to consider NCDR.
  • Reminder of how mediators cover all forms of NCDR at Miams.

Breakdown of the FPR

Fewer reasons not to attend a Miam

Around 65% of applicants do not attend a Miam pre-application. It is widely recognised that some of the reasons claimed were spurious, weak or no longer justified. So some gaps have been closed, the most important and noteworthy being:

  • As the NCDR definition has changed, only having entered into a distinct service like mediation, arbitration, ENE (such as pFDRs) and collaborative law in the preceding four months will count. However, the list is not exhaustive so, say, a round table should count too.
  • Proof to back up the NCDR attempt and other exemptions will be needed.
  • financial hardship’ and not just ‘unreasonable hardship’ to the prospective applicant. This means that there are no urgency grounds based on non-specific ‘hardship’ for children cases. Many litigants in person may have previously claimed this exemption: what parent is not going to consider that a delay will cause hardship to them or their children?
  • Lack of availability of a physical office is, on its own, not a reason to be exempted from a Miam.  This includes not being habitually resident in the jurisdiction.  Most of the exemptions do however remain about inaccessibility, but now only when a person can also prove that they are unable to use online or video-link facilities instead.

    One could argue that almost all Miam exemptions could be abolished. Miams provide a valuable service quite apart from their court diversion role.  Those that need to remain may only be the inaccessibility reasons, or when a Miam or NCDR has taken place in the previous four months.

Abolition of Miam exemptions linked to non-attendance of the respondent.

The FPRC’s consultation asked for responses to the question of whether Miams had value as a standalone service. The resulting rules (there was no further consultation response) show agreement with those who thought it does, for the information, support and triage reasons previously given.  Therefore, all exemptions linked to knowing that the respondent would not engage have been abolished. 

A further benefit is if the applicant alone has attended, there is already a service involved should the judge wish to direct the respondent to attend a Miam also.

Domestic abuse not domestic violence

The definition of domestic violence has been changed to domestic abuse, in accordance with the Domestic Abuse Act 2021.  ‘Abusive behaviour’ is defined as any of the following:

  • physical or sexual abuse;
  • violent or threatening behaviour;
  • controlling or coercive behaviour;
  • economic abuse;
  • psychological, emotional or other abuse.

As well as expanding the definition, there are some additional ways of providing proof (see the tracked-changed documents).

Abolition of all mediator-granted exemptions

It never seemed to make sense that a mediator would sign someone out of their service without seeing them. Most mediators forgot these provisions existed: now they don’t!

Proof of a Miam exemption will be needed

At the time the application is made, proof of a Miam exemption will need to be provided for most categories. For the NCDR exemption, that will be written confirmation from the NCDR provider.

Early scrutiny of Miam Attendance or the Miam exemption

Though the court will issue the proceedings, checking the exemption or Miam attendance will be made at the allocation/gatekeeping stage in children cases, and in financial cases either at the allocation stage or at the first hearing.

If a Miam exemption has not been validly claimed, or is no longer applicable, the court may direct parties to attend a Miam.

The court still retains the power to adjourn for Miam attendance at this stage, though it is probably more likely, as with an NCDR referral, that it will try to do so to fit within the ‘natural’ timetabling gaps.

Constant court scrutiny of views on NCDR

The court will require parties to fill in a standard form with their views on NCDR before the first hearing. This sits in parallel with the court’s duty to consider, at every stage, whether NCDR might be appropriate. The only exception would be if a Miam exemption, validly based on domestic abuse and with proof, has been claimed, or a form C1A has been filed.

This NCDR form will be filed 7 working days before the first hearing and a copy served on the other party. A judge can then direct updated versions to be filed 7 working days before any subsequent hearing.

Use the natural gaps in hearings for a judge to encourage Miam attendance or NCDR

The court has added powers to raise the issue of NCDR, either on an application or its own initiative, when the timetabling of proceedings allows a sufficient gap, as the court should then encourage NCDR where appropriate.

There has been a subtle but important shift. Previously the FPR allowed for a case to be adjourned for NCDR where ‘the parties agree’. It has been changed to being ‘when the court considers’ that NCDR may be appropriate, it would ‘encourage’ the parties to look into it. This addition gives the court greater powers to strongly encourage (but not order) reluctant parties to attempt NCDR in appropriate cases, but without being thrown out of the court’s standard timetabling. This change should make both judges and parties more amenable to doing so, than if they were to face the prospect of yet more court delay by way of an adjournment.

If the court notes that there will be time for parties to attend NCDR between hearings or (more rarely) on an adjournment, any failure of a party to then attend NCDR will not affect the substantive decision a court may make. However, as below, it may take the parties’ conduct in relation to NCDR into account when considering whether to make an order for costs in financial proceedings.

Beefed up cost orders in financial proceedings for failure to consider NCDR

Rule 28.3 has been amended to add that, in financial remedy cases, the consideration of the court whether to make a cost order must now have regard to any failure by a party, without good reason, to:

(i)      attend a Miam, or

(ii)     attend NCDR.

It remains to be seen how widespread the use of these new sanctions will be, but they are a good incentive to make sure that you are not the first to find out!

Reminder of how mediators cover all forms of NCDR at Miams

The FPR changes add provisions concerning the conduct of Miams, specifying that the mediator should:

  • consider and explain the potential benefits of mediation and other methods of NCDR as a means of resolving the dispute. (This replaces: ‘assess the suitability of mediation as a means of resolving the dispute’.)
  • indicate which form(s) of NCDR may be most suitable and why; and
  • for the suitable form(s), provide information about how to proceed with the service(s) in question.

Although these paragraphs add little or nothing to FMC mediators’ own mandatory and regulated standards, it is valuable to have them repeated to a wider audience. 

Conclusion

The rule changes have been made to make everyone involved sit up and think. It is clear that in appropriate cases, court is best avoided. Now these new rules give everyone working within the system a chance to make that happen.  They could, and should, be a game changer, if all those within the system play their part. 

This is an updated version of a longer article in March Family Law on these critical FPR changes.

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