New changes to the Family Procedure Rules

As of April 29th, the new regulation mandating the majority of separating and divorcing couples to first attempt non-court dispute resolution methods, like mediation, for addressing children arrangements and financial matters, has officially come into effect.

The changes have been introduced because the previous Rules were not applied to the extent expected and did not divert cases from court proceedings to the degree that had been intended.

Mediator Initial Assessment Meetings (MIAMs) are meetings where an accredited mediator provides a potential applicant to proceedings with information on settling their dispute out of court. Under the current Rules, it is a requirement for all prospective applicants to attend a MIAM, unless an exemption applies.

The Rule changes arise from a push to help more parties settle their cases outside of court. The principle changes include:

  • The independent mediator conducting the MIAM explaining and considering all forms of non-court dispute resolution (NCDR), rather than just mediation. This includes arbitration, evaluation by a third-party and collaborative law.
  • The procedure relating to MIAMs starting earlier in the application process.
  • The court having a duty to encourage parties to consider suitable forms of NCDR at all stages of proceedings, particularly between hearings. The courts have the discretion to adjourn hearings to allow for this.
  • Some of the exemptions to MIAMs being limited or removed.
  • Parties are now required to file a new form, called FM5, seven days before the first hearing to set out their views on NCDR.*

Law Society of England and Wales president Nick Emmerson said:

“We agree that supporting parties to settle their cases outside of court and informing them of their options relating to non-court dispute resolution (NCDR) is important. Court should be a last resort because it is expensive, takes longer and can have a significant emotional impact on parties. However, it is vital that there are no barriers to accessing the courts when this is necessary or appropriate.

Mediation, therefore, should not be mandatory and access to the courts should be protected. We are pleased that the changes to the Rules retain access to courts, while encouraging and supporting parties to consider their options beyond the court process. The updated Rules provides an opportunity for parties to explore all the options, including NCDR, in resolving their dispute out of court when attending a Mediator Initial Assessment Meetings.

We are also pleased that the changes to the Rules will retain the protections afforded to victims of domestic abuse and vulnerable parties, ensuring they do not need to engage in any form of NCDR.”

The Family Procedure (Amendment No.2) change means that those who don’t try mediation or other forms of dispute resolution will have to explain to the court why they have not done so. A judge must now actively consider whether the parties should have to attend mediation or another form of resolution before the court will address their matters. Commenting on the changes, Evie Smyth, Associate in the Family Law team at Russell-Cooke LLP, said:

“Although the new rules do not go quite as far as compelling parties to engage in forms of non-court dispute resolution, there is undoubtedly strong encouragement to do so. Parties will have to complete a new form indicating whether they would be open to using NCDR. Courts will also now have the explicit power to adjourn proceedings, where timetabling allows, so as to encourage the parties to explore their non-court options even when neither party agrees to such an adjournment.

Perhaps the strongest tool of encouragement is that courts can now take into account a party’s refusal to attend a MIAM (an initial mediation assessment) or engage in NCDR when considering whether to make a costs order in financial remedy proceedings.”

“It remains to be seen to what extent the forthcoming changes to the FPR will herald a change in the uptake of NCDR and how readily the courts will employ the new rules where parties fail to engage in NCDR processes. What is clear is that there has never been a more pressing need for NCDR, at a time when family courts are facing a huge backlog of cases and families are waiting longer and longer for a hearing date. It is hoped that the new rules will guide many families who may have otherwise used the courts by default, to properly consider less adversarial and more efficient ways of resolving their disputes.”

Marc Etherington joined the latest Today’s Family Lawyer Podcast to discuss the changes to the Family Procedure Rules. You can listen below:

2 Responses

  1. Where will this leave LiP’s – will they have to file the FM5 if they have no legal representation??? How will this work for them.

  2. I am very pleased to see the amendment come into effect as from the 29th April 2024.
    Perhaps the NCDR it will encourage mediators to be more proactive in their approach to resolving disputes. I state this because several client’s have reported that the mediator did not explain the process nor did they encourage the parties to engage in mediation. Instead, the mediator just passed on messages from one party to another. In fact one mediator is reported to say, “I am just passing on messages”.
    For my part, I always encourage mediation and explain the advantages as well as send to all my clients an information leaflet.

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