Strengthening the role of mediation: Family Procedure Rules changes

Family law is a dynamic field that continually evolves to meet the changing needs of families and individuals. In the pursuit of fair and efficient resolution of family disputes, the Family Procedure Rules play a crucial role in guiding legal practitioners and individuals through the legal process.

Recently there have been discussions about making significant changes to Part 3 of the Family Procedure Rules, particularly aimed at reevaluating and strengthening the mediation exemption. This move reflects a broader effort to encourage parties involved in family disputes to explore non-court dispute resolution methods before resorting to court proceedings.

What is Part 3 of the Family Procedure Rules?

Part 3 of the Family Procedure Rules primarily addresses the mediation process in family law cases. Mediation is a voluntary process (and one of a number of forms of non-court dispute resolution) that aims to help parties reach mutually agreeable solutions with the help of a neutral third party without resorting to lengthy and costly court proceedings.

The mediation exemption as currently outlined in Part 3 allows individuals to bypass the mediation process in certain circumstances such as cases involving domestic abuse, urgency or where mediation is deemed inappropriate. Unfortunately, as the current exemption is wide-ranging, this has resulted in the misuse of the exemption as a shortcut to legal proceedings without a valid reason and has invariably increased the number of cases before the courts, many of which may well have benefited from the involvement of a mediator.

Changes to Part 3 of the Family Procedure Rules

The changes to Part 3 of the Family Procedure Rules (which come into force on 29 April 2024) signal a shift in the approach to the mediation exemption. The aim is to ensure that parties genuinely explore mediation as a viable option before opting for court intervention. The hope is that this will result in more amicable solutions for families and promote the use of mediation as a primary means of dispute resolution while limiting exceptions to cases where mediation is genuinely impractical or unsafe.

One of the key changes is the narrowing of the circumstances that qualify for the mediation exemption. The intention is to ensure that parties actively engage in the mediation process unless there are compelling reasons not to do so. By doing this, the legal system aims to streamline the resolution of family disputes and reduce the burden on already backlogged courts. Parties will be required to demonstrate that they have made a genuine effort to engage in non-court dispute resolution.

The changes also include a more rigorous assessment of cases where mediation is deemed inappropriate. Courts will be granted additional discretion to scrutinise claims of inappropriateness requiring parties to provide compelling evidence to support their request for exemption and to penalise uncooperative parties if necessary. This shift aims to prevent parties from using the mediation exemption as a convenient way to avoid the process without valid reasons and to leave the courts freer to deal with the cases that genuinely require court intervention, leading to a better experience overall for any families going through separation.

Although not compulsory to attend a Mediation Information and Assessment Meeting (MIAM), the changes will make it harder to avoid attending one before parties can access the mediation exemption. This is designed to ensure that individuals are well informed about the mediation process (and other non-court dispute resolution options), its advantages and the potential consequences of bypassing it.

In cases involving abuse, there will be more consideration given to how these cases are approached rather than maintaining the blanket mediation exemption. The changes will allow cases that require court intervention to come within the exemption while ensuring that in other cases, that may in fact benefit from non-court dispute resolution, there can be careful consideration of specialised mediation processes tailored to the unique challenges of these types of cases. This can include consideration of the structure and format of the mediation, the involvement of solicitors and the input of domestic abuse (or other) experts to ensure the safety of all parties involved as a top priority. There is much clearer understanding that although mediation can be used by perpetrators to continue abuse, the same is potentially more so in court proceedings, meaning court is not necessarily the appropriate option in such cases.

While the intention is to strengthen the use of mediation as a primary tool for dispute resolution, it is essential to strike a balance that respects the rights and safety of all individuals involved. As the legal landscape continues to evolve, the upcoming changes to Part 3 of the Family Procedure Rules highlight a commitment to promoting mediation as a first port of call for resolving family disputes while ensuring the court remains available to those who really need it. While the increased scrutiny of the mediation exemption may pose challenges, it is anticipated that the overall impact will be a more efficient and collaborative approach to resolving family matters outside the courtroom.

If you have questions about using mediation to resolve a family matter, please contact Laura Brown.