13 June 2018
On 6 April 2011, a Pre-Action Protocol was launched together with the New Family Procedure Rules. In essence, now in every family case – whether financial or involving children – solicitors are obliged to consider whether or not they should refer their client for a Mediation Information Assessment Meeting (MIAM).
The new rules also require the court to consider, at every stage of the proceedings, whether mediation is appropriate and it has the power to adjourn proceedings of its own motion whilst mediation is explored. In V v V  EWHC 1190 (which is a very recent case concerning a jurisdictional dispute), Mr Justice Peter Jackson reminded the parties and their lawyers of the Court's powers to adjourn the proceedings and the requirement to consider mediation. He said, ‘he expected this option will be very much in the mind of judges concluding any future cases'.
Cost implications could arise in cases where mediation is not explored. However, not every case is suitable and it is possible for a solicitor to pre-screen to say that mediation should not take place. However, solicitors are encouraged to promote mediation at the earliest available opportunity and to set up a MIAM for the client to meet a mediator (whether on their own or jointly with their partner) to see if mediation is likely to be successful and to encourage the clients to continue in the mediation process. This signifies an increasing awareness of the importance of trying to settle family disputes early and constructively. We have mediators in the family team at Withers who are able to spend time with clients considering whether or not they are suitable for mediation and to deal with the MIAM process.
Although the Pre-Action Protocol refers exclusively to mediation, there is an argument that it should embrace all forms of Alternative Dispute Resolution to include Collaborative law. We also have a number of collaborative lawyers in the team.
Another exciting development in this area is Arbitration. This has never been used in the family law context before in this country and the first training course is being run in September 2011. Suzanne Kingston, a partner in our team, is teaching the course and it is anticipated that a number of partners in the family team will train. So, rather than waiting several months, if not years, in the court system, it will be possible to opt for Arbitration and have a fully binding and final adjudication provided by a senior family lawyer who has had years of practical experience.
We appreciate that although it is great to have aspirations towards settling cases, that is not always practicable or possible. There may be issues of law at stake or entrenched differing views that can only be resolved by a court. Alternative Dispute Resolution is not for everybody in every case. It is simply, what it says it is – an alternative way of resolving issues on relationship breakdown.