The Ministry of Justice has announced today a consultation on supporting earlier resolution of private family law arrangements which will be open until 15 June 2023.
Within its 58 pages, the consultation document suggests the following (non-exhaustive overview):
- An extension of the use of existing co-parenting programmes such as the Separated Parenting Information Programme/Planning Together for Children and WT4C and the requirement in the future for parents/carers to have attended a co-parenting programme before mandatory mediation.
- It is acknowledged that this could prolong the time it will take to reach agreements or to make a court application, particularly if one parent is reluctant to complete the programme or there is a waiting list for the course. The impact of this requirement will need to be borne in mind and balanced.
- Further consideration to be given to the timing and enforcement of the evidence requirement for exemptions from the MIAM requirement. The MoJ are of the view that the current list of MIAM exemptions needs shortening and more rigorously tested by the courts i.e. removal of the 15-mile exception in light of most mediations offering online services.
- The committee is also contemplating rule changes to encourage parents to consider dispute resolution, including the use of costs orders in circumstances including:
- Against a respondent who fails to respond to a request for mediation, resulting in an application being made.
- Applicants who did not attempt mediation or claimed an exemption that the court finds later was not validly claimed.
- If proceedings are stayed by the court after issuing for the parties to attend mediation, then costs order should be available where one party has not made a reasonable attempt at mediation at that stage.
- Where the court decides that one party dragged out court proceedings by refusing to accept a reasonable offer.
- Judicial discretion would still be applied, to assess the circumstances of the case and any mitigating factors.
- The Government's ambition is to introduce a new system whereby they make mediation compulsory before a court application is made (with exceptions). Based on the findings of the mediation voucher scheme, the government expects that for the majority of people, attending compulsory mediation will result in a full or partial agreement.
- Applicants would be able to self-certify an exemption to the requirement to mediate, however, this would be more heavily scrutinised by the court and the court would have the new power to order the parties to thereafter make a reasonable attempt at mediation after an application has been received if an exemption has been invalidly claimed or if it was validly claimed but the circumstances no longer apply i.e. the urgent issue has been addressed and the remaining issues are suitable for mediation.
- Whether the court should have a new power to make parties make a statement to the court explaining their approach to pre-court dispute resolution and their position on the material issues at stake.
- The Government intends to fund mediation for all children cases, up to the value of £500 and are seeking views on whether to match the funding or apply legal aid thresholds for financial remedy cases.
- Whether more regulation is required to put in place standards for mediators, beyond those that the Family Mediation Council already has in place.
Clearly, there are both pragmatic and controversial ideas contained within the consultation document and whilst Anthony Collins fully supports the use of both mediation and other forms of alternative dispute resolution, our fee earners will need time to digest the consultation document before providing their views through completing the consultation survey.
The consultation is open to everyone. The Government is particularly interested to hear from organisations representing separating families, family justice professionals, mediation service providers, other dispute resolution service providers and individuals who have lived experience of the family courts or mediation. We, therefore, encourage everyone to read through the consultation documentation carefully and provide their views accordingly.
The consultation period is open until 15 June 2023.
Documentation can be accessed here.
The survey can be accessed here.