Mediation in Family Disputes: Bolstered by the changes to the Family Procedure Rules?
When one thinks of the characteristics of a family dispute, what comes to mind?
Well for me (and perhaps others too), I think of emotional intensity first and foremost. Often family disputes are high stakes, and the outcomes can have a profound personal and emotional impact on the parties involved. Given the stakes involved, parties are often emotionally charged from the beginning. Coupled with pre-existing strains in their relationship and deficiencies in their communication style, parties can, very quickly, find themselves at an impasse. It is in such a context that mediation can serve as a useful tool to help parties come to a resolution. By giving each party the chance to express their emotions and concerns and helping the other party to understand their perspective, mediators can facilitate effective communication and shift the focus towards a mutually agreeable solution. Indeed, there is a wealth of literature and empirical studies which highlight the success of mediation as a dispute resolution tool in this area, a blog for another day.
Over the years, governments around the world have recognised the power of mediation to resolve family disputes and foster a more cooperative and less adversarial approach to family breakdown. As such, many governments have actively taken steps to encourage its use. Some countries such as Italy and Australia have mandated mediation in certain family disputes whilst others such as Singapore and Canada have aimed at making it more accessible by providing subsidised family mediation services and government funding to mediation centres. The United Kingdom can be seen to have adopted a multi-faceted approach in this regard; from introducing the family mediation voucher scheme and legislative requirements for parties to consider mediation to launching public information campaigns and pilot projects. Whilst criticisms can almost certainly be made about these actions, encouragement of mediation in family disputes is undeniably on the government’s agenda.
In the UK mediation sphere, the changes to the Family Procedural Rules (FPR), which came into effect on 29 April 2024, have been a subject of discussion. By way of background, the FPR were first introduced in England and Wales in April 2011. The rules were created to provide a unified and streamlined set of procedures for all family proceedings in the family courts and the family division of the High Court.
The introduction of the FPR aimed to simplify the family justice system, making it more accessible and efficient for those involved in family disputes. A key objective of the FPR was the promotion of alternative dispute resolution (ADR) methods such as mediation. Various provisions in the FPR were designed to support this objective including the provisions for parties to attend a Mandatory Mediation Information and Assessment Meeting (MIAM) before filing an application to the court and for the court to consider whether ADR is appropriate at various stages of the proceedings.
On 29 April 2024, various provisions within the FPR were amended to bolster the initial objective of encouraging greater use of mediation and other forms of ADR in family disputes. There are a few noteworthy changes. Firstly, parties are now required to complete a form detailing their views on using ADR to resolve their disputes. Secondly, courts can now adjourn proceedings to encourage parties to participate in ADR, even without the explicit consent of the parties involved. This aligns with legal precedents affirming the courts' authority to mandate participation in ADR where suitable. Lastly, if a party fails to engage in ADR without a valid reason, the court may consider this when making cost orders. This means that parties who do not attempt ADR could face financial penalties, providing a strong incentive to explore ADR options before and during court proceedings.
Only time will tell whether these changes have the desired effect, however, I think they certainly mark a step in the right direction. I am most intrigued by the new form requirement which, in my view, may encourage parties to consider ADR options more seriously before commencing court action. The act of writing out their views may help to ensure that their decision is a considered one and is in their best interests rather than fuelled by emotion. Those who initially wanted their day in court may realise that this may do more harm than good after exposing themselves to the benefits associated with ADR options.
Catherine Johnston is a trainee solicitor at Shepherd and Wedderburn LLP