Parents Against Injustice

FAMILY MEDIATION PRACTICE NOTES

Family mediation - 31 March 2011

1 Introduction

1.1 Who should read this practice note?

Family law solicitors who have clients wishing to make an application to the court in relevant family proceedings.

1.2 What is the issue?

Practice Direction 3A and its accompanying pre-application protocol for family Mediation Information Assessment Meetings (MIAMs) will be introduced on 6 April 2011.

Under the protocol, all potential applicants, before making their application for a court order in relevant family proceedings will be expected, unless exempted, to have considered alternative means of resolving their disputes. Respondents will also be expected to attend a MIAM to consider dispute resolution options, if invited by a mediator to do so.

The protocol is designed to apply to privately paying litigants and litigants in person and is similar to the procedures for publicly funded parties contained in the Legal Services Commission's Funding Code and its associated procedures.

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2 Practice Direction 3A

Practice Direction 3A applies where a person is considering applying for a court order in relevant family proceedings (See relevant proceedings in section 4).

The practice direction is supplemented by three annexes:

Annex A: The pre-application protocol (the protocol) sets out the steps that the court will normally expect an applicant to follow before an application is made to the court
Annex B: Defining relevant family proceedings
Annex C: Exemptions from attending a MIAM.

2.1 Purpose of the practice direction

The purpose of this practice direction and accompanying protocol is to:

supplement the court's powers in part 3 of the Family Procedure Rules 2010 to encourage and facilitate the use of alternative dispute resolution
set out good practice to be followed by any person who is considering making an application to court for an order in relevant family proceedings; and
ensure, as far as possible, that all parties have considered mediation as an alternative means of resolving their disputes.

The Law Society's Family Law Protocol 2010 requires a solicitor at a first meeting to consider with their clients alternative dispute resolution options and this practice is now supported through the practice direction and its pre-application protocol.

See a copy of this practice direction (PDF).

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3 Annex A: pre-application protocol

Under the protocol all potential applicants for a court order in relevant family proceedings will be expected, before making their application to the court, to have followed the steps set out in the protocol.

The protocol requires a potential applicant, except in certain specified circumstances, to consider with a mediator whether the dispute may be capable of being resolved through alternative dispute resolution processes.

The court will expect all applicants to have complied with the protocol before commencing proceedings, subject to the exemptions set in Annex C (see Section 4), and will also expect respondents to have attended a MIAM, if invited to do so. If proceedings are issued, the court will wish to know at the first hearing whether mediation has been considered by all parties. The Family Mediation Information and Assessment Form FM1 (Form FM1) is to be filed with any application made to the court, see Section 6 below for further details.

In considering the conduct of any relevant family proceedings, the court will take into account any failure to comply with the protocol and may refer parties to a MIAM with a mediator before proceedings continue further.

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3.1 Compliance with the protocol

To comply with the protocol before an application is made to the court, you should be aware of the following:

You or your client should contact a family mediator to arrange for your client to attend a MIAM about family mediation and other forms of alternative dispute resolution. Your client is not expected to attend a MIAM if they are excluded from doing so, see Section 5 for further information. See Section 7 below for information on how to find a family mediator.
You or your client should provide the mediator with contact details for the other party or parties (respondents) to the dispute, so that the mediator can contact these parties to discuss their willingness and availability to attend a MIAM
Your client should then attend a MIAM arranged by the mediator. If the parties are willing to attend together, the meeting may be conducted jointly, but where necessary separate meetings may be held. If the parties do not attend a joint meeting, the mediator will invite the applicant and the respondent to a separate meeting unless they fall within an exemption category as outlined at Section 5 below.
At the MIAM the mediator should consider with the parties whether public funding may be available to meet the cost of the meeting and any subsequent mediation
If your client makes an application to the court in respect of the dispute, a completed Form FM1 should be filed at the same time confirming attendance at the MIAM or giving reasons for not attending. For more information about Form FM1 see Section 6 below.

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3.2 Funding

You should ensure that your client is aware that the Legal Services Commission (LSC) is only able to remunerate for MIAMs and/or mediation services for publicly funded clients where the MIAMs and/or mediation are undertaken by LSC-contracted mediators and mediation services who are eligible to provide these services.

Where parties are not eligible or do not wish to seek public funding, any charge made by the mediator for the meeting will be the responsibility of the attending parties in accordance with any agreement made with the mediator.

Information as to which mediators and services are eligible to provide publicly funded meetings can be found at:

local family courts
the Community Legal Advice helpline - CLA Direct (0845 345 4345)
Community Legal Advice website

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4 Annex B: relevant family proceedings

Relevant family proceedings are defined as:

1) Private law proceedings relating to children, except:

proceedings for an enforcement order, a financial compensation order or order under paragraph 9 or part 2 of Schedule A1 to the Children Act 1989;
any other proceedings for enforcement of an order made in private law proceedings; or
where emergency proceedings have been brought in respect of the same child(ren) and have not been determined.

See Family Procedure Rule 12.2 for the definition of 'private law proceedings' and 'emergency proceedings'.

2) Proceedings for a financial remedy, except:

proceedings for an avoidance of disposition order or an order preventing a disposition;
proceedings for enforcement of any order made in financial remedy proceedings.

See Family Procedure Rule2.3(1) for the definition of 'financial remedy', and Rule 9.3(1) for the definition of 'avoidance of disposition order' and 'order preventing a disposition'.

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5 Annex C: exemptions

Your client is not expected to attend a MIAM when making an application to the court in relevant family proceedings if any of the listed circumstances applies:

Part 2 of the FM1 Form

The mediator is satisfied that mediation is not suitable because:
- another party to the dispute is unwilling to attend a MIAM and consider mediation; or
- the case is not suitable for a MIAM; or
- a determination by a mediator within the previous four months has been made that the case is not suitable for a MIAM or for mediation.

Part 3 of the FM1 Form

Any party has, to your client's knowledge, made an allegation of domestic violence against another party and this has resulted in a police investigation or the issuing of civil proceedings for the protection of any party within the last 12 months.
The dispute concerns financial issues and your client or another party is bankrupt.
The parties are in agreement and there is no dispute to mediate.
The whereabouts of the other party are unknown to your client.
The prospective application is for an order in relevant family proceedings which are already in existence and are continuing.
The prospective application is to be made without notice to the other party.
The prospective application is urgent, meaning:
- There is a real risk to the life, liberty or physical safety of your client or his or her family or his or her home; or
- Any delay caused by attending a MIAM would cause a risk of significant harm to a child, a significant risk of a miscarriage of justice, unreasonable hardship to your client or irretrievable problems in dealing with the dispute, such as an irretrievable loss of significant evidence.
There is current social services involvement as a result of child protection concerns in respect of any child who would be the subject of the prospective application.
A child would be party to the prospective application by virtue of Family Procedure Rule 12.3(1).
You or your client contacts three mediators within 15 miles of your client's home and none is able to conduct a MIAM within 15 working days of the date of contact.

Part 4 of the FM1 Form

Any other reason not specified in parts 2 or 3 of the FM1 Form and which should be set out in the form.

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6 Form FM1

The new Family Mediation Information and Assessment Form FM1 is to be used in connection with family proceedings to which the Practice Direction 3A applies. When issuing proceedings the form should be completed in accordance with the protocol and filed with any application made to the court.

The form must be completed and signed by the mediator, and counter-signed by you or your client, where either:

Your client has attended a MIAM (part 1 of the form); or
Your client has not attended a MIAM (Part 2 of the form) and
- The mediator is satisfied that mediation is not suitable because another party to the dispute is unwilling to attend a MIAM and consider mediation; or
- The mediator determines the case is not suitable for a MIAM; or
- A mediator has made a determination within the previous four months that the case is not suitable for a MIAM or for mediation.

In all other circumstances, the form must be completed and signed by you or your client.

A copy of the FM1 form will be available from 6 April from the following sources:

magistrates' courts, county courts or the High Court
Directgov.uk
the HMCS form finder

The FM1 form is currently unavailable at these services however a copy of the form can be found at the end of the practice direction (PDF).

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7 Using family mediators before applying to the court

Before your client makes an application to the court in relevant family proceedings, unless exempted, you or your client should contact a family mediator to arrange for your client to attend a MIAM.

The protocol does not provide a definition of family mediator, however you should ensure that any referral you make is to an appropriately qualified and experienced family mediator.

You should advise and assist clients in selecting the most suitable family mediator for the dispute in question, by reference to some or all of the following aspects:

training
areas of expertise
discipline(s) of origin
appreciation of relevant issues of ethnicity and culture
charging rates
geographical suitability
any other relevant characteristics

Information on how to find a family mediator may be obtained from:

local family courts
the Community Legal Advice Helpline - CLA Direct (0845 345 4345)
Directgov website

Details of the Law Society Family Mediation Panel and how to access its practitioner members can be found on the Law Society's website. There are also other organisations that offer family mediation training and accreditation, which can be located through the Family Mediation Council website.

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8 Family Procedure Rules

The protocol is a supplement to part 3 of the Family Procedure Rules 2010, which comes into force on 6 April 2011.

Terms used in this practice direction and its accompanying protocol have the same meaning as those used in the Family Procedure Rules.

See the Family Procedure Rules 2010 for more information.

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9 Private law programme

In private law children proceedings, the court is actively involved in assisting parties to resolve their disputes through alternative means.

The pre-application protocol does not affect the operation of the private law programme now set out in Practice Direction 12B. However, this does not mean that parties in private law children proceedings do not have to comply with the protocol and they should use Form FM1 when applying to the court.

Practice Direction 12B provides for a first hearing dispute resolution appointment to discuss the nature of the dispute and whether it could be resolved through mediation or other alternative means.

See private law programme (PDF) for further information.

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10 More information

10.1 Professional conduct

Rule 1: Core duties

10.2 References

10.3 Practice advice

Practice Advice Service - The Law Society provides support to solicitors on a wide range of areas of legal practice. The service is staffed by solicitors and can be contacted on 0870 606 2522 from 09.00 to 17.00 on weekdays.
www.lawsociety.org.uk/practiceadvice

10.4 Status of this practice note

Practice notes are issued by the Law Society as a professional body for the benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. Solicitors are not required to follow them.

They do not constitute legal advice and, while care has been taken to ensure that they are accurate, up-to-date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

10.5 Terminology in this practice note

Must – a specific requirement in the Solicitor's Code of Conduct or legislation. You must comply, unless there are specific exemptions or defences provided for in the code of conduct or relevant legislation.

Should – good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.

May – a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.