• Will Cost Orders follow should a party go back on on their agreement to mediate?

    19.05.14

    On 13th March 2014 the Children and Families Act 2014 was given royal assent with this then coming into force on 22nd April 2014.  This provides that anyone wanting to make an application to the court in family proceedings, will need to see a mediator for a Mediation Information and Assessment Meeting (MIAM) first unless limited exemptions apply.  The purpose of the MIAM is for parties to explore whether mediation or other forms of dispute resolution might be appropriate for resolving their issues. The Court will reject any application that is not properly endorsed by a Mediator following attendance at a MIAM or in the event that no proper exemption applies. Also, throughout the proceedings, the Judge can adjourn all or parts of the application for one or both of the parties to attend a MIAM or to allow the parties to mediate should they agree to.

    In the recent case of Mann v Mann [2014] EWHC 537 (Fam) Mostyn J held that where a party has agreed to mediate, the Court can adjourn for this to take place but also there can be cost implications if one of the parties goes back on that agreement.  Also, Mostyn J was satisfied that it was open to him to make an order that the party who deemed mediation as unsuitable should justify that decision and if not acceptable then costs implications could flow from that.

    In the said case of Mann v Mann, the husband had failed to make payments agreed under the Court of Appeal mediation scheme. The wife issued a statutory demand in respect of the sums owed but the demand was withdrawn on the agreement that the matter was be resolved by further mediation. Such mediation did not however take place, each party blaming the other. Whilst Mostyn J could not compel the parties to engage in mediation he did see fit to make an Ungley Order. An Ungley Order requires the parties to consider whether the case is suitable for ADR (mediation) and that a refusal to even consider the question may give rise to a risk on costs. 

    Ungley Orders have not been common under the Family Procedure Rules as under these rules, a case may only be adjourned for mediation  in the event that the parties agree to mediate. Under the Civil Procedure Rules however the Court can adjourn a case for mediation/ADR even in the absence of the parties agreement, hence the more frequent use of Ungley Orders in Civil proceedings.

    This recent Judgement is a further example of positive recognition of the benefits of mediation.  At every juncture, parties are expected to consider the option of mediation,  or other forms of ADR, as this is likely to be quicker, cheaper and less emotionally draining than Court proceedings. 

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