What will 2024 bring for Family Mediation?

 

In this blog Victoria Nottage, FLiP’s Head of Knowledge and Learning, identifies the headlines to watch out for across both case law and legislation in the family mediation world.

With developments across both case law and legislation, 2024 is shaping up to be an exciting year for Family Mediation.  Here are the headlines to watch out for:

Compulsory mediation

Historically, a key hurdle to the court being able to require parties to attend mediation was the apparent conflict that this would create with access to justice and in particular, Article 6 of the ECHR that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. 

However in 2021, the Civil Justice Council published a report concluding that an order requiring litigants to attend alternative dispute resolution, was not of itself, contrary to Article 6, unless it obstructed access to justice.  Any court direction must be proportionate; it can’t, for example, be onerously expensive or cause inordinate delays which would hinder access to the underlying court proceedings.

In turn, this conclusion has opened the way for the decision by the Court of Appeal in the case of Churchill v Merthyr Tydfil CBC [2023] EWCA Civil 1416 published just before Christmas. The decision saw the Master of the Rolls, Sir Geoffrey Vos in the leading judgment, conclude that it is permissible in some circumstances for proceedings to be stayed and for parties to be required to attempt to resolve their dispute by alternative dispute resolution processes.

Although this is within the civil sphere, when we look across to the Family Justice arena, the SI also published in December, which will amend the Family Procedure Rules (“FPR”) in April 2024, seems to demonstrate a family justice system poised to follow the lead.

Family Procedure Rule Changes

Mediation Information and Assessment Meetings (MIAMs) were introduced in 2014 with the aim that prospective litigants would not be able to issue an application at court without having first attended and considered the possibility of resolving the dispute by way of mediation or other alternative routes of disputes resolution, instead.  However, it has long been evident that for those who are determined to litigate a family dispute, attendance at a Mediation Information and Assessment meeting (‘MIAM’) is regarded as optional; a small obstacle to avoid and then forget.

The changes that will be introduced in April this year, seek to put MIAMs on a different footing.  First, they limit the exemptions, making it much harder for prospective litigants to avoid the requirement to attend a MIAM before being able to issue proceedings.  They then introduce a requirement for parties who have started proceedings to report to court in open correspondence about their attitudes to resolving their dispute by way of Non Court Dispute Resolution (NCDR); thus creating a framework for checking-in and re-considering the possibility of NCDR as the case progresses. In a nod towards compulsory mediation, the rule changes include the introduction of a power for the Judge to adjourn proceedings to allow the parties to investigate NCDR without their agreement.  Finally and in a crucial move, the costs rules are amended to include the failure to attend a MIAM or at NCDR as a reason to depart from the normal no order as to costs rule.

To see exactly how the new rules will change FPR Part 3 and PD3A, you can access our comparison document here.

Government Consultation

Alongside the FPR consultation that heralded these changes to the rules, in 2023, the Government also consulted on ‘early resolution of private family law disputes’ and asked about the issues with mandating NCDR.  We await the outcome of that consultation but with the news that the Mediation Voucher Scheme is being extended into 2025, there is no doubt that mediation continues to be a key part of the government’s strategy for resolving disputes within the family justice system.

 

Victoria Nottage heads the Knowledge Management and Professional Development team at FLiP. She is a solicitor, family mediator, collaboratively trained practitioner and a coach. Victoria is passionate about FLiP’s holistic approach to client service, which brings together excellence in legal services with leading mediation and counselling practices.  Victoria has always been committed to helping clients resolve their disputes in a way that acknowledges and seeks to manage the greater impact of family separation, not only in terms of the emotional and mental health of the parties but also how it affects wider members of the family and especially children. 

To learn more about our market leading family mediation services and how family mediation might help you, contact FLiP at E: hello@flip.co.uk or T: 020 7420 5000.