“Do I have to mediate?”

Mediation has been available to separating couples in England for decades to address any issues they wish to explore about their finances and/or their children upon relationship breakdown. A trained impartial mediator who is familiar with relationship dynamics, but also with how the law might impact upon the issues, can work with the couple, if they cannot sort matters themselves.

Mediation encourages parties to focus on the future and to make their own decisions and to focus on good communication where possible. One of mediation’s key elements is that it is voluntary. Not free, but nobody is compelled to try it.

The Government could see years ago (and well before Covid and its slowing of the time it takes to get to see a judge), that mediation might reduce court waiting times and reduce the cost of family justice. Legal Aid funding for mediation was initially made available but has largely been eroded.

The greatest concern was that parties were spending a disproportionate amount of funds on the costs of the litigation compared to the issue being argued about.

As a boost to encourage parties to consider trying mediation before rushing to a court to impose an outcome, parties now have to confirm in the court application form itself that they had attended a Mediation Information and Assessment Meeting (MIAM), other than in certain circumstances, such as domestic abuse. In a MIAM, mediators explain the range of other options to address dispute resolution including mediation, arbitration and collaborative work. This step started with good intentions, but has soon become a hurdle to be cleared.

So the court added Family Procedure Rules (FPR 3.3 and 3.4) to remind parties and, importantly their advisers and the judges that:-

FPR 3.3 (1) The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.

FPR 3.4 states (so far as is material) as follows:

1. 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 –
   
   (a) to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution; and     
   
   (b) where the parties agree, to enable non-court dispute resolution to take place.
   
   
2. The court may give directions under this rule on an application or of its own initiative.
   
   
3. Where the court directs an adjournment under this rule, it will give directions about the timing and method by which the parties must tell the court if any of the issues in the proceedings have been resolved.
   
   
4. If the parties do not tell the court if any of the issues have been resolved as directed under paragraph (3), the court will give such directions as to the management of the case as it considers appropriate.

In the recent case of WL v HL [2021] EWFC B10, Mr.Justice Mostyn, in his role as National Lead Judge of the Financial Remedies Courts, endorsed Recorder Allen QC’s use of case management in the case and asked for the case to be reported.

Recorder Allen had encouraged the parties to consider and enter non-court dispute resolution and provide him with fortnightly updates which assisted them in reaching settlement. Even though agreement was not ultimately reached in mediation (the parties sorted it themselves), the judge’s management of the dispute took the matter out of the court arena.

It allowed the parties:-

• to maintain a direct dialogue rather than it being conducted in writing through solicitors (with the potential for polarisation and the inevitable increase in costs)
• Mediation enabled communication and finding a solution that worked for them as parents of their young child (rather than having one imposed) yet knowing that the judge was in the background

Recorder Allen noted, “ the approach …led to a better, quicker and less expensive outcome than would otherwise have been the case…it furthered the overriding objective of enabling the court to deal with cases justly and in particular the obligation in r.1.1(2)(b) of dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (d) of saving expense; and (e) allotting to the case an appropriate share of the court's resources, while taking into account the need to allot resources to other cases. My use of these powers was also an exercise of my duty as set out in r.1.4 to further the overriding objective by actively managing cases which includes at r.1.4(2)(f) "encouraging the parties to use a non-court dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure".

Time will tell of the impact of this decision. Despite a Report of the Family Solutions Group (a subgroup of The Private Law Working Group chaired by Mr. Justice Cobb) dated 12th November 2020 there is no data collected on the extent to which these duties and powers are applied across the country. The concern is that if the existing rules are not applied “opportunities to resolve cases out of court are thus lost”.

This article was written by Sarah Anticoni. For more information please contact Sarah at sarah.anticoni@crsblaw.com or call +44 (0)20 7203 5180.