Courts changing their approach to the future of family law

On behalf of Attwaters Jameson Hill posted in Family Law on Thursday, May 16th, 2024

Family law disputes have sometimes had a reputation for conflict. At a stressful time in your personal life, having to fight a court battle can be an unwelcome thought.

In recent years, there has been a big shift away from this confrontational style of divorce proceedings. Now, updates to the family procedure rules have gone even further to stop pitting divorcing parties against one another.

Following the changes, which came into effect from the end of April, more disputes could soon be resolved away from court.

That is because non-court dispute resolution, such as mediation, will now be strongly encouraged.

So, what is mediation? And can courts compel divorcing couples to use it?

Mediation for divorcing couples

At present, an individual about to issue a court application must have attended a Mediation Information Assessment Meeting (MIAM).

This is an initial meeting with a specially qualified family mediator. The purpose of this meeting is to consider whether all issues can be resolved without going to court. MIAMs are confidential and designed for the benefit of the divorcing parties.

Under the new rules, attendees at a MIAM must receive information on the options available for non-court resolution.

For example, they will be provided with information about the principles, process and different models of mediation. Likewise, they must also hear about other methods of non-court dispute resolution, including arbitration, evaluation by a neutral third party and collaborative law.

Courts will have a duty to consider at every stage in the proceedings whether non-court dispute resolution is appropriate.

Mediation is not always possible

The new rules further emphasise the value of mediation and the importance of MIAMs. However, they do not compel anyone to undergo mediation.

The government reportedly considered forcing separating couples into mediation. In the end, it chose not to do so. This was because it recognised that a one-size-fits-all approach would not be helpful.

Mediation is not always a suitable or desirable option for divorcing couples. In some cases, an approach that requires the cooperation of both sides might not be feasible. At other times, a court settlement can ensure one or more parties get the outcome they want.

As such, court settlements still play a crucial role in settling family law disputes.

When mediation does work

For some divorces, though, mediation can have major benefits in achieving a successful dispute settlement.

Mediation is a confidential process that can help some couples find a mutually agreeable solution for all parties.

The idea is that a mediator – an independent and impartial third person – can help the parties talk through the issues and come to an agreement that everyone is happy with.

Although non-court dispute resolution will be encouraged by the new rules, Family Law courts will not be given the power to compel parties to choose this route.

A costly change?

One way in which the new rules will impact divorcing couples could be in costs orders.

As part of the plans to promote non-court dispute resolution, parties could now be asked to file a form setting out their views on using mediation. Judges could then take parties’ conduct in relation to attending non-court dispute resolution into account when considering whether to make a costs order.

Here to help

Going through a divorce can be a complicated business. As family law rules evolve, having someone on your side who knows everything that’s going on can be a big advantage

For example, it is important to be aware of the possible implications that your willingness to engage with non-court dispute resolution can have on financial claims.

Our family law experts are here to offer advice at every stage so you can have full peace of mind throughout the process. Get in touch today!

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