If you are separating from your partner, spouse, or civil partner, the best possible way to deal with the arrangements that need to be made is outside of court. With mediation, couples discuss their issues through a trained mediator who ensures the discussion is free from tension. Mediation is proven to be an effective method of resolving the issues that arise when separating. Not only does it maintain calm between the parties and work towards an amicable outcome, but it also saves a great deal of time and money by avoiding costly court visits.
If you’d like to learn more about mediation and how our specialist family law solicitors can guide you through your divorce using this process.
Section 10 of the Children and Families Act 2014 (CFA 2014) provides that:
before making a relevant family application, a person must attend a family mediation information and assessment meeting (MIAM)
the court may not issue, or otherwise deal with, an application if, in contravention, the applicant has not attended a MIAM
The changes introduced by CFA 2014 came into force on 22 April 2014. It remains that while attendance at a MIAM has been, since 22 April 2014, compulsory for most applicants, there are circumstances in which attendance will not be required. The requirement to confirm attendance at a MIAM (or an exemption), previously set out only in Form FM1, is now also included in various court forms for completion prior to the issue of the application.
The pre-application requirements are set out in the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 3, supplemented by FPR 2010, PD 3A.
With effect from 6 April 2015, FPR 2010, SI 2010/2955, 3.4(1)(a) was amended to provide that:
‘If the court considers that non-court dispute resolution is appropriate, it may direct that the proceedings, or a hearing in the proceedings, be adjourned for such specified period as it considers appropriate…to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution.’
Law Society protocol
The Law Society’s Family Law Protocol provides that, unless it is clearly inappropriate to do so, family lawyers are required to explain alternative methods of resolving disputes outside the court process and advise on the benefits and/or limitations in the client’s specific case plus the role of the solicitor in supporting the non-court dispute resolution process where appropriate. The potential suitability of alternative methods of dispute resolution should be kept under review throughout a case.
Types of non-court dispute resolution
There are three main types of family non-court dispute resolution: mediation, collaborative law and arbitration.
Mediation is a process by which an independent qualified mediator works with a couple to help them come to a mutual agreement.
The collaborative process involves the instruction by each party of a collaborative lawyer and the entering into of a collaborative participation agreement. There are no adversarial court proceedings. The parties sign a disqualification clause indicating that if they are unable to agree matters and issue proceedings, they will dispense with the services of their current lawyers and instruct new lawyers.
Arbitration is a form of formal dispute resolution. The parties enter into an agreement under which they appoint a suitably qualified person (an arbitrator) to adjudicate their dispute and make an award. Arbitration has been available for family law disputes since 26 March 2012 following the launch of the Institute of Family Law Arbitrators (IFLA)
Standard orders have been issued in relation to arbitration as part of the standard orders project
Skills that may be employed by both mediators and family lawyers in seeking to reduce conflict and reach agreement include:
The client as both parent and partner/spouse/civil partner
A party experiencing the breakdown of their own relationship may find it difficult to separate out their roles as parents (which will continue), and their role as a partner/spouse/civil partner. Both family lawyers and mediators should seek to differentiate between those different roles. The Resolution Guide to Good Practice on Correspondence highlights the need to, for example, ensure that correspondence in relation to the relationship breakdown and finances are kept separate from correspondence regarding the children.
Identifying children’s needs, feelings and wishes
Every child will be affected by the breakdown of their parents’ relationship. Both practitioners and mediators can be a useful source of information about how parents can talk to their children about the relationship breakdown and what they can do to help.
Identifying underlying concerns
Practitioners may veer away from asking clients what their concerns and fears are, instead focusing on practical information but this approach may result in important issues being overlooked and an agreement reached which causes continuing conflict long after the involvement of the parties’ lawyers.
Using problem solving techniques
Problem solving techniques may assist both family lawyers in traditional practice as well as in formal mediation such as round table negotiations, whereby the clients and their respective lawyers meet together following full disclosure.
Outside of non-court dispute resolution methods, the principles and theory of negotiation can assist family lawyers. Ideally negotiations should be integrative, ie where the parties attempt to discover solutions that embody mutual self-interest (a win-win solution).
Referral to mediation
Some clients may find a mediator through their own initiative or by outside recommendation, others may need more guidance. When deciding whether to refer a client to mediation the following factors may be considered (in general terms, other issues may arise for the legally aided client):
consider whether the client (and their former spouse/civil partner/cohabitant) is emotionally ready to attend mediation—if one party still hopes the relationship will continue, and has difficulty accepting that the other party considers the relationship to be at an end, mediation may not be suitable at this stage
consider whether there is sufficient trust in the relationship for mediation to be suitable—if hostile feelings are running high or one party is suspicious that, for example, the other party may be dissipating assets then mediation may not be suitable
where domestic violence has taken place or is alleged, mediation will usually but not invariably be unsuitable—even where domestic violence issues do not arise, the balance of power between the parties should be carefully considered; other vulnerabilities such as drug or alcohol abuse may also make mediation unsuitable.
The Help You Need, from Experienced, Respected Family Law Solicitors
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