In recent years the government has placed a much greater emphasis on separating couples/parents resolving issues outside of the court process wherever possible. This started with the introduction of the requirement to attend a MIAMS (Mediation Information and Assessment Meeting) a few years back but there have been issues with whether this requirement was policed and what difference it made if you hadn’t. The reasons for it are probably clear to anyone with any knowledge of the family court system with the huge delays, shortage of judges and limited time in court.
Going through a separation is a really scary time with many uncertainties about what will happen and what the likely outcome will be. Many believe that going to court will somehow right the injustices that they have suffered, and ensure that there is an outcome that they are happy with. There can be great shock at how little time they spend with a Judge, and how that Judge will ignore issues that may seem important, grievous or significant to the people they relate to (because that is the Judge’s job to cut to the issues). Before embarking on a court application many people think that they will get a hearing date relatively quickly, and/or that things will be resolved by attending court once. It can be very disheartening to learn that you need to attend a number of court hearings to get things resolved, and that there can be many months of waiting for hearing dates. It is not uncommon for hearings you have waited months for to then be cancelled at the last meeting and this is psychologically challenging to deal with when you have been focused on that date for some time. The new date could again be months into the future.
The changes address the issues with the MIAM requirement not being taken seriously all the time, and set a very clear tone that the could be a last resort for most and certainly not the first step. The government wants only those who really need the courts to use them as this will ensure the availability of Judges and court time for those that really need them.
So what are the changes? From now any party applying to the court for assistance with resolving a family issue (whether that is finance or children related or both) has to show what they have done to resolve issues without going to court. This is NOT a tick box exercise as the new form FM5 that they are required to provide contains boxes to explain what has been done so it quite literally isn’t just about ticking boxes.
This requirement will be looked at by Judges (who are getting further training) and costs orders can be made where one person has unreasonably refused to engage in Non-Court Dispute Resolution. You may have seen the term NCDR for short. There are, of course, exemptions for victims of Domestic Abuse as some of the Non-Court Dispute Resolution processes may not be appropriate for them. If this is you and you particularly have concerns about mediation then please know that mediators NEVER bring two people together in the same room (whether a physical or online room) without having seen you both individually for a meeting to assess whether it would be safe, appropriate and suitable to do so.
What does NCDR mean? Well mediation is one big part of this (and there is much information about mediation on this site) but it also includes:
- Collaborative practice (where you talk about issues in meetings like mediation but where you each have a specially trained lawyer that supports you and you all agree that things will be resolved in that process, and not in court);
- Tools to assist you in negotiation such as getting an expert solicitor or barrister to give you their opinion on the right outcome to help you move pass points where you are stuck. This is called an Early Neutral Evaluation.
- Arbitration – this is where a private judge (who is usually a solicitor or barrister who has done other qualifications) decides things for you. That might be everything or it might be just the bits you’re stuck on.
- You could also use an Arbitrator to have a Private Financial Dispute Resolution hearing to help you negotiate by telling you what they think the likely outcome is. This is what a Judge does in a Financial Dispute Resolution hearing but a private judge gives you their full attention and time, and you will usually be able to arrange this more quickly than waiting for the court timetable to get to that point
- But crucially it isn’t just limited to these things. If you can show you have tried to address things outside of court then this may count to. To be clear though, there is a big difference for everyone between “my solicitor wrote 3 letters” and “my ex and I have had several meetings over a few months and narrowed down our issues”.
The single most important thing that you need to know if you’re going through a separation, is that you must show what you have done to resolve issues without the court and this must be clear about demonstrating the efforts that have been made. Without this you run the risk of costs orders being made. Your mediator should give you information about these processes at a MIAMS meeting and if you’re instructing a lawyer they should give you information to. If either person doesn’t then ask!
If you truly want to understand more about all the NCDR options and their advantages and disadvantages then you may find the (Almost) Anything But the Family Court book by Jo O’Sullivan useful. There’s also a digital edition of the book.
