Mediation

Since 6th April 2011 there has been a change in the law, following the implementation of the Family Procedure Rules 2010, for all parties to attend a Mediation Information and Assessment Meeting (MIAM) before issuing either Financial Remedy (matrimonial finance) or Children Act applications.

This means that you are required to attend a session with a Mediator, to discuss the benefits of Mediation and how the process works, prior to commencing any such Court application other than for divorce and certain emergency applications.

The purpose of this new requirement is to see if parties can reach an amicable settlement/agreement without the need to enter into what can too often be protracted and hostile Court proceedings. It is far better for former partners/spouses and parents to reach a workable agreement between themselves than to have a decision forced upon them, especially as this is only likely to increase the tension between the parties and with regard to children disputes the parties will still need to have a ‘relationship’ for many years after the end of a Court case, especially if their children are still very young.

It is necessary for both parties to be willing to attend – they cannot be forced to, although the Court now has the power to stop any proceedings whilst a referral to Mediation is made, if it is felt that it would be of benefit to the parties.

Any Application made to the Court must be accompanied by the appropriate form to confirm that Mediation has been attempted and either the other party was unwilling to attend or that the Mediation has broken down. There are certain exceptions to Mediation, such as cases involving domestic violence where a complaint has been made to the Police within the last twelve months.

Whilst there is a ‘no Order’ principle in Children Act cases, where the Court will not make an Order unless it is necessary and in the child’s/children’s best interests, there is no such provision in family finance cases.

Where an agreement is reached in financial disputes it is important that this is recorded by way of a formal Consent Order, which is generally lodged with the Court prior to pronouncement of Decree Absolute, for a Judge’s consideration – to ensure that it is ‘fair and reasonable’. This will usually end or at the very least limit either parties ability to make further claims against the other for financial assistance in the future.

Whether you are the Petitioner/Applicant or Respondent it is imperative that you obtain legal advice to ensure any such Order is correctly drafted and records accurately the agreement you have reached.

If you are receiving Legal Aid then there is an exemption from the Statutory Charge (repayment of Legal fees) if an agreement has been reached through Mediation. Legal Aid is also still available, subject to meeting the necessary financial criteria, to fund the costs of Mediation.

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