Pre-Action Protocol for Mediation, Information and Assessment
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Contents
PRACTICE
DIRECTION 3A - PRE-APPLICATION PROTOCOL FOR MEDIATION INFORMATION AND
ASSESSMENT
4. The
Pre-Application Protocol
Annex A – The Pre-Application Protocol
Annex B – Proceedings which are
relevant proceedings
Annex C – Circumstances for
non-attendance
See
also our guide on Mediation
for cases arising on or after 6 April 2011
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 the Family Procedure Rules (FPR) Part 3
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.
2.1 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.
3.1 There
is a general acknowledgement that an adversarial court process is not always
best suited 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 resolving 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 Family 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-application 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
followed 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 complied 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.
4.2 Nothing
in the Protocol is to be read as affecting the operation of the Private Law
Programme, set out in Practice Direction 12B, or the role of the court at the
first hearing in any relevant family proceedings.
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 www.direct.gov.uk.
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 A1 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))
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
(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 of
contact.
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