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