ChildRIGHT: In a nutshell - Separating couples must now consider mediation

- How will couples be affected by the rule change?

Since 6 April, separating and divorcing couples who are planning to contest their separation or divorce in the courts must attend a mediation assessment in order to determine whether mediation would be a more successful method of resolving their disputes. Couples will be required to attend a Mediation Information and Assessment Meeting (MIAM) to discuss the mediation process. This replicates the system currently operating for couples granted legal aid.

- What is mediation?

Family mediation is a way of resolving disputes amicably without going to court.

A mediator facilitates discussion between the parties and helps them to reach arrangements for themselves and their children.

The process of mediation differs throughout the country. In some mediation services parents are seen separately and then they are bought together to see if they can reach a compromise. In other mediation services the parents are seen together, sometimes with their solicitor or a representative present.

- When will it be necessary to attend a mediation awareness session?

Couples who do not wish to contend the terms of their separation or divorce in court will not need to attend a mediation awareness session. Separating couples who wish to apply for a court order in relation to a dispute concerning their children, such as custody rights, will be expected to attend a MIAM before applying to the court.

- What is the rationale for making mediation assessment compulsory in separation or divorce?

Mediation allows parties to avoid an adversarial court process and resolve disputes through discussion and agreement.

It is particularly beneficial for disputes between parents relating to their children as it allows a compromise to be reached in an atmosphere of discussion and agreement. National Audit Office figures on mediation funded by legal aid indicate that mediation works to solve disputes more quickly than court cases. The average time for a case to be resolved via mediation is 110 days compared with 435 days for court cases regarding similar issues.

- Are there any circumstances in which it is not necessary to attend the mediation meeting?

The new practice direction specifies certain circumstances in which it is not necessary for parties to attend a mediation awareness session before making an application to court. A party making such an application will not be expected to attend a MIAM if the case involves an allegation of domestic violence (where this has resulted in a police investigation or the issuing of civil proceedings).

Similarly, a MIAM will not be necessary in cases in which social services have been involved as a result of child protection concerns. A party will not be expected to attend a MIAM if the other party is unwilling to consider mediation.

- What happens if the dispute cannot be resolved using mediation?

In circumstances where mediation cannot be used to resolve the dispute, the applicant must complete a Family Mediation Information and Assessment Form (Form FM1) confirming their attendance at a MIAM or giving the reasons for not attending. The form must be completed and signed by the mediator, and counter-signed by the applicant or the applicant's solicitor. A copy of the form can be obtained from magistrates' courts, county courts or the High Court or from www.direct.gov.uk.

Finding a mediator:

This can be done via local family courts, from the Community Legal Advice Helpline 0845 345 4 345 or at www.direct.gov.uk