London divorce solicitors look at the Family Procedure Rules
There has been major innovation regarding Alternative Dispute Resolution in the new Rules. the Rules took 5 years of planning and consultation but at a relatively late stage, dramatic rules regarding ADR were introduced. They are timely and of crucial benefit to the clients in keeping more matters out of court.
In a nutshell, after April 6th 2011 before anyone can issue court proceedings for finance and children they must see a mediator before they issue their court application. Efforts were made previously in 1996 to encourage mediation in family law with the introduction of no fault divorce legislation. However despite huge numbers of people training as mediators, the number of people actually attending mediations was disappointingly low.
In the new Rules ADR is defined as 'any means of resolving a dispute except by going to court'. There are also different models of mediation. The more traditional method meant a mediator was entirely neutral and did not give any sort of guidance or steer to the parties. One of the new models of mediation is the directive mediation (from Australia), where the mediator (usually a very experienced family lawyer), will get much more involved in helping couples find a solution.
Despite all these changes though, one must not overlook that the best way to resolve family disputes is through lawyers negotiating sensibly and in a conciliatory fashion to minimize the costs and delay to the clients.
Part 3 of the Rules sets out the courts powers regarding ADR. Under Rule 3.2 the court must consider at every stage of proceedings whether ADR is appropriate. The court has the power effectively to adjourn matters and make the parties attend mediation, or rather direct they get details of mediation. This power existed in the 1996 Family Law Act, but it is now explicit in the final law and much clearer. What is more, the court can do this of their own motion.
A lot of judges have actually trained themselves as mediators, and are acutely aware of the need to save resources by referring matters to mediation. Lawyers will therefore have to be well prepared if they are planning to oppose the idea of mediation on behalf of their client.
All financial and Children applications are now in the main covered by this requirement (apart from emergency proceedings). Crucially the mediation imperative does NOT relate to divorce which is seen by many as a missed opportunity. It does however mean you can issue your divorce petition and then deal with the issue of mediation later in the course of the divorce proceedings.
So will this mean it will be impossible for people to get a mediator quickly? This is a very real worry, and only time will tell. The Rules assist though because if you genuinely cannot find a mediator within 15 working days of 15 miles of where you live, you are not obliged to, and it is an excluded category. It is also worth noting that a mediator may sign the form FM1 even where parties have not attended, but only in 3 circumstances:-
1. The Applicant did not attend because the respondent refused to turn up.
2. The mediator certifies the case is not suitable for mediation.
3. The mediator has determined within the last 4 months that it is not suitable.
Lawyers can also self certify under 10 well defined categories that the case is not suitable, for example where there is an allegation of domestic violence and there has been a police investigation and/or civil proceedings. Domestic violence alone though is NOT a reason for lawyers to self certify.
The expectation is that the vast majority of applications for financial and children matters will be dealt with at mediation, but the current reality is that only time will tell.
For any questions or further information on divorce, contact London divorce solicitors at Southampton Row Solicitors.
