PRE-APPLICATION PROTOCOL FOR MEDIATION

04/11/2011 14:21

This Practice Direction supplementing the Family Procedure Rules 2010 is made by the

President of the Family Division under the powers delegated to

 

him by the Lord Chief Justice

under Schedule 2, Part 1 paragraph 2(2) of the Constitutional Reform Act 2005. and is

approved by the Parliamentary Under Secretary of State, by authority of the Lord Chancellor.

This Practice Direction comes

 

into force on 6th April 2011

PRACTICE DIRECTION 3A

 

- PRE-APPLICATION PROTOCOL FOR MEDIATION

INFORMATION AND ASSESSMENT

This Practice Direction supplements FPR Part 3

1. Introduction

1.1

 

This Practice Direction applies where a person is considering applying for

an order in family proceedings of a type specified in Annex

 

B (referred to

in this Direction as “relevant family proceedings”).

1.2 Terms

 

used in this Practice Direction and the accompanying Pre-action

Protocol have the same meaning as in the FPR.

1.3 This Practice Direction is supplemented by the following Annexes:

(I) Annex A: The Pre-application Protocol (“the Protocol”), which sets

out steps which the court will normally expect an applicant to

follow before an application is made to the court in relevant

family proceedings;

(ii) Annex B: Proceedings which are “relevant family proceedings” for

the purposes of this Practice Direction; and

(iii) Annex C: Circumstances in which attendance at a Mediation

Information and Assessment Meeting is not expected.

2. Aims

2.1 The purpose of this Practice Direction and the accompanying Protocol is

to:

(a) supplement the court’s powers in Part 3 of the FPR to encourage

and facilitate the use of alternative dispute resolution;

(b) 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

(c) ensure, as far as possible, that all parties have considered

mediation as an alternative means of resolving their disputes.

3.

 

Rationale

3.1 There

 

is a general acknowledgement that an adversarial court process is

not always bestsuited

 

to the resolution of family disputes, particularly

private

 

law disputes between parents relating to children, with such

disputes often best resolved through discussion and agreement, where

that can be managed safely and appropriately.

3.2 Litigants who seek public funding

for certain types of family proceedings

are (subject to some exceptions) already required to attend a meeting

with a mediator as a pre-condition of receiving public funding.

3.3 There Is growing recognition of the benefits of early Information and

advice about mediation and of the need for those wishing to make an

application to court, whether publicly-funded or otherwise, to consider

alternative means of resolving their disputes, as appropriate.

3.4 In private law proceedings relating to children, the court is actively

Involved in helping parties to explore ways of resoMng their dispute. The

Private Law Programme, set out in Practice Direction 12B, provides for a

first hearing dispute resolution appointment (‘FHDRA’), at which the

judge, legal advisor or magistrates, accompanied by an officer from

Cafcass (the Children and Famliy Court Advisory and Support Service), will

discuss with parties both the nature of their dispute and whether It could

be resolved by mediation or other alternative means and can give the

parties information about services which may be available to assist them.

The court should also have information obtained through safeguarding

checks carried out by Caftan, to ensure that any agreement between the

parties, or any dispute resolution

process selected, is in the Interests of

the child and safe for all concerned.

3.5 Against that background, it is likely to save court time and expense if the

parties take steps to resolve their dispute without pursuing court

proceedings. Parties will therefore be expected to explore the scope for

resolving their dispute through mediation

before embarking on the court

process.

4. The Pre-appllcatlon Protocol

4.1 To encourage this approach, all potential applicants for a court order In

relevant family proceedings will be expected, before making their

application, to have foiiowed the steps set out In the Protocol. This

requires a potential applicant except in certain specified circumstances, to

consider with a mediator whether the dispute may be capable of being

resolved through mediation. The court will expect all applicants to have

compiled

with the Protocol before commencing proceedings and (except

where any of the circumstances In Annex C applies) will expect any

respondent to have attended a Mediation Information and Assessment

Meeting, if invited to do so. If court proceedings are taken, the court will

wish to know at the first hearing whether mediation has been considered

by the parties. 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 the parties to a meeting with a mediator

before the proceedings continue further.

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4.2 Nothing in the Protocol is to be read as affecting the operation of the

Private Law Programme, set out in Practice Direction 1213, or the role of

the court at the first hearing in any relevant family proceedings.

Signed

 

N t&dtPresident of the Family Division

Date

Signed Parliamentary Under Secretary of State

Annex A The Pre-application Protocol

1. This Protocol applies where a person (“the applicant”> is considering making

an application to the court for an order in relevant family proceedings.

2. Before an applicant makes an application to the court for an order in relevant

family proceedings, the applicant (or the applicant’s legal representative)

should contact a family mediator to arrange for the applicant to attend an

information meeting about family mediation and other forms of alternative

dispute resolution (referred to

 

in this Protocol as “a Mediation Information

and

Assessment Meeting”).

3. An

 

applicant is not expected to attend a Mediation Information and

Assessment Meeting where any of the circumstances set out in Annex C

applies.

4. Information on how to find a family mediator may be obtained from local

family courts, from the Community Legal Advice Helpline

 

CLA Direct (0845

345 4345) or at www.direct.gov.uk.

5. The applicant (or the applicant’s legal representative) should provide the

mediator with contact details for the other party or parties to the dispute

(“the respondent(s)”), so that the mediator can contact the respondent(s) to

discuss that party’s willingness and availability to attend a Mediation

Information and Assessment Meeting.

6, The applicant should then attend a Mediation Information and Assessment

Meeting 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 applicant and respondent(s) do not

attend a joint meeting, the mediator will invite the respondent(s) to a

separate meeting unless any of the circumstances set out in Annex C

applies.

7. A

mediator who arranges a Mediation Information and Assessment Meeting

with one or more parties to a dispute should consider with the party or

parties concerned whether public funding may be available to meet the cost

of the meeting and any subsequent mediation. Where none of the parties is

eligible for, or wishes to seek, public funding, any charge made by the

mediator for the Mediation Information and Assessment Meeting will be the

responsibility of the party or parties attending, in accordance with any

agreement made with the mediator.

8. If the applicant then makes an application to the court in respect of the

dispute, the applicant should at the same time file a completed Family

Mediation Information and Assessment Form (Form FM1) confirming

attendance at a Mediation Information and Assessment Meeting or giving the

reasons for not attending.

9. The Form FM1, must be completed and signed by the mediator, and countersigned

by the applicant or the applicant’s legal representative, where either

(a) the applicant has attended a Mediation Information and Assessment

Meeting; or

(b) the applicant has not attended a Mediation Information and

Assessment Meeting and

(i) the mediator is satisfied that mediation is not suitable because

another party to the dispute is unwilling to attend a Mediation

Information and Assessment Meeting and consider mediation;

(ii)

 

the mediator determines that the case is not suitable for a

Mediation Information and Assessment Meeting; or

(iii)

 

a mediator has made a determination within the previous four

months that the case is not suitable for a Mediation

Information and Assessment Meeting or for mediation.

10. In all other circumstances, the Form FM1 must be completed and signed by

the applicant or the applicant’s legal representative.

11, The form may be obtained from magistrates’ courts, county courts or the

High Court or from

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Annex B Proceedings which are “relevant family proceedings” for the purposes of this

Practice Direction

1. Private law proceedings relating to children, except:

proceedings for an enforcement order, a

financial compensation

order or an order under paragraph 9

or Part 2

of Schedule Al 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.

(“Private law proceedings” and “emergency proceedings” are defined in Rule 12.2)

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.

(“Financial remedy” is defined in Rule 2.3(1) and “avoidance of disposition order”

and “order preventing a

disposition” are defined in Rule 9.3(1))

Annex C

A person considering making an application to the court in relevant family

proceedings is not expected to attend a

Mediation Information and Assessment

Meeting before doing so if any of the following circumstances applies:

1. The mediator

 

is satisfied that mediation is not suitable because another party to

the dispute is unwilling to attend a

Mediation Information and Assessment

Meeting and consider mediation.

2. The mediator determines that the case

 

is not suitable for a Mediation

Information and Assessment Meeting.

3. A mediator has made a determination within the previous four months that the

case is not suitable for a

Mediation Information and Assessment Meeting or

for mediation.

4. Domestic abuse

Any party has, to the applicant’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.

5.

 

Bankruptcy

The dispute concerns financial issues and the applicant or another party

 

is

bankrupt.

6. The parties are in agreement and there is no dispute to mediate.

7. The whereabouts of the other party are unknown to the applicant.

8. The prospective application is for an order

 

in relevant family proceedings which

are already

 

in existence and are continuing.

9, The prospective application is to be made without notice to the other party.

10. Urgency

The prospective application

 

is urgent, meaning:

(a) there is a risk to the life, liberty or physical safety of the applicant or his

or her family or his or her home; or

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(b) any delay

 

caused by attending a Mediation Information and Assessment

Meeting would

cause a risk of significant harm to a child, a significant risk of a

miscarriage of justice, unreasonable hardship to the applicant or Irretrievable

problems In dealing

with the dispute (such as an Irretrievable loss of

significant evidence).

11. 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.

12. A child would be a party to the prospective application by virtue

of Rule 12.3(1).

13. The applicant (or the applicant’s legal representative)

contacts three mediators

within 15 miles of the applicant’s home and none Is able to conduct a Mediation

Information and Assessment Meeting within 15 workIng days of the date

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