Attendance at mediation information assessment meetings
Attendance at MIAMs is required under section 10(1) of the Children and Families Act 2014.
Part 2, Part 28 and Part 3 of the Family Procedure Rules (FPR) and Practice Direction 3A have been amended by the Family Procedure Rule Committee to strengthen attendance.
These changes came into effect on 29 April 2024.
This guidance summarises the key changes in the FPR and Practice Direction 3A, which aim to underscore practitioner, party and court obligations to consider and bring to the attention of clients any appropriate forms of non-court dispute resolution (NCDR) at all stages of the process.
Practitioners should read this guidance alongside the full changes to the rules.
This guidance first summarises the main changes in the rules and Practice Direction 3A and then sets out the specific changes.
Summary of changes to the rules and practice direction
The broad objective of the changes to the rules and Practice Direction 3A is to make attendance at a MIAM an opportunity for parties to explore all their options in resolving their dispute out of court.
The general changes in line with this objective include:
‘Other forms of non-court dispute resolution’
These are now included as options for resolving disputes meaning that, during the MIAM, the mediator will explain and consider all the options for the parties to resolve their disputes and the potential benefits of each of the forms of NCDR.
These ‘other forms of non-court dispute resolution’ may include:
- arbitration
- valuation by a third party
- collaborative law
Attendance at a MIAM is now seen as an opportunity to receive information about different forms of NCDR.
It is, therefore, now required that an independent mediator conducting a MIAM discuss all potentially suitable forms of NCDR throughout the meeting, not just where mediation is not appropriate.
Domestic Abuse Act 2021
'Domestic violence' has been replaced with 'domestic abuse', as in sections 1 and 2 of the Domestic Abuse Act 2021.
The definition of 'personally connected' replaces 'in a family relationship', as in section 2 of the Domestic Abuse Act 2021.
Court scrutiny
Court duties and powers
While the changes to the FPR do not give the courts the power to force couples to engage in NCDR, the courts do continue to bear a responsibility to consider whether NCDR is appropriate in the circumstances of the parties and the applications they are making.
This responsibility exists at all stages of the proceedings.
Additionally, section 3.4 allows the court to adjourn proceedings "when the court considers that NCDR may be appropriate".
Previously, the FPR stated that a hearing could be adjourned where "the parties agree to it", which is a significant change.
Party views on using NCDR
In considering the appropriateness of NCDR, the court will want to know the parties’ views on using NCDR to resolve disputes.
Each party is therefore now required to file with the court an FM5 Form to set out their views on using NCDR in their dispute. They must also serve this file on all other parties.
This must be done either seven days before the first hearing or in such other period before that hearing as the court directs.
The court can also require the parties to file and serve upon other parties an updated version of the standard form, in the time frames mentioned above.
The specifics of evidence required by parties for exemptions to attending a MIAM are largely unchanged. The only new requirements are:
- the evidence must now be provided with the application but does not need to be served on the other party. Previously, the applicants were required to bring any evidence to the first hearing, where it would have been scrutinised as to its validity
- the court will inquire into this evidence to determine whether the MIAM exemption has been validly claimed, where it has been validly claimed and whether it is still validly claimed
Relevant proceedings
The requirement to consider a MIAM will apply to proceedings for financial remedy and private law proceedings, unless the domestic abuse exemption has been used or a C1A form has been filed with the relevant court.
Exemptions
In line with the intention of encouraging more cases to consider non-court dispute resolution, some of the exemptions have been changed, narrowed or removed entirely.
Requirements for supporting documents
Where an MIAM exemption is claimed, an applicant claiming that exemption must now attach any supporting documentation and evidence to their application. Previously, this was required to be presented at the first hearing.
Court scrutiny of exemptions
Where a prospective applicant claims an exemption, the court will issue proceedings but will now also make inquiries as to the validity of the claimed exemption.
In private law proceedings, this enquiry must be made when the case reaches the ‘gatekeeping’ stage.
In financial remedy proceedings, this may happen either when the case is allocated or at the first hearing.
In reviewing the exemption, the court may look at the supporting evidence to assess either whether:
- the MIAM exemption was validly claimed, or
- any validly claimed exemption remains valid
Where the court considers the MIAM exemption is not valid, based on the supporting evidence supplied, the court now has the power to direct the applicant or the parties to attend a MIAM and may adjourn the proceedings for this to happen.
Timetabling and encouraging NCDR
Between hearings
The court may consider that, where there are gaps between hearings, the parties should be using these gaps to engage in NCDR.
If the court considers this is appropriate, they should now make it clear to the parties.
To achieve this, the court may adjourn proceedings (under rule 4.1). Decisions on the appropriate length of an adjournment will be taken on a case-by-case basis.
Non-attendance
Where the court gives the parties time to attend NCDR (including adjourning for that purpose), and both or either party fail to attend, this will not affect any substantive decision made by the court as to issues presented in the proceedings.
However, the court may take this conduct into account when making orders for costs.
Attending a MIAM
Where the prospective respondent is contacted by the mediator and they are unwilling to attend a MIAM, a prospective applicant is still required to attend.
Conduct of MIAMs
There are some changes to what mediators undertaking a MIAM should cover.
These are mainly intended to require mediators to inform parties of all options relating to NCDR, so they can find the most appropriate for their circumstances.
Additionally, mediators providing a MIAM are required to provide reasons why a particular form of NCDR is most suitable and provide information on how the parties can proceed with the relevant form of NCDR.
Changes to Portal
The relevant portals have been amended to follow the changes made to the FPR. Under the previous system, you were able to move through to the next steps of the portal if you keyed in the name and number of the mediator. This will no longer be the case. See below for relevant changes and journeys:
Attendance at a MIAM
You will be able to move through to the next screen, once you have selected ‘yes’ and provided the details of the mediator.
Non-Attendance at a MIAM
If a party has not attended a MIAM, you will need to select ‘no’, and then claim an exemption. If you do not claim an exemption, you will be stopped from moving forward.
In both instances, you will need to separately upload the FM5 form to set out the party views on using NCDR to resolve their issues.
Specific amendments to the rules and practice direction
This section sets out the specific changes to the rules.
Most of the amendments are in Part 3 but we also include the changes made to other parts.
Amendment of Part 2
2.3(1)
‘Domestic abuse’ now takes on the definition given in sections 1 and 2 of the Domestic Abuse Act 2021. This has been changed throughout.
‘Non-court dispute resolution’ now includes references to other forms of NCDR and now reads:
"'non-court dispute resolution’ means methods of resolving a dispute, other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law."
2.5
This section now inserts the new wording below, after paragraph 1A:
"(1B) The functions of the High Court listed in Practice Direction 2D may be exercised by a court officer who meets the criteria specified in that Practice Direction.
(1C) Practice Direction 2D may make provision for the procedure to be followed where such a court officer exercises a function of the High Court."
This confers additional powers to the relevant court officers and allows for relevant scrutiny at an earlier point in the proceedings.Amendment of Part 3
This Part includes the bulk of the changes.
3.1 - Interpretation
This Rule no longer includes the definitions of ‘domestic violence’, ‘mediator’s exemption’ and ‘prospective respondent’.
3.3 - Court’s duty to consider non-court dispute resolution
The changes to this section place a duty on the courts to consider, at every stage, whether NCDR would be appropriate.
This is inserted after paragraph (1): "When the court requires, a party must file with the court and serve on all other parties, in the time period specified by the court, a form setting out their views on using non-court dispute resolution as a means of resolving the matter raised in the proceedings".
Paragraph (2)(b) now omits the reference to mediator exemption being confirmed.
3.4 - When the court will adjourn proceedings or a hearing in proceedings
This section’s heading is now:
Timetabling proceedings: encouraging non-court dispute resolution
Paragraph (1) will now read:
“Paragraph (1A) applies when the court considers that non-court dispute resolution is appropriate.
(1A) Where the timetabling of proceedings allows sufficient time for these steps to be taken, the court should encourage parties, as it considers appropriate, to—
- (a) obtain information and advice about, and consider using, non-court dispute resolution; and
- (b) undertake non-court dispute resolution.”
Paragraph (2) will now read: “the court may give directions about the matters specified in paragraph (1A) on an application or of its own initiative."
This may require parties to consider or undertake NCDR at additional points throughout applications.
The paragraphs below are also added:
"(2A) Subject to paragraph (2B), the court may give directions referred to in paragraph (2) at any time during the proceedings.
(2B) In proceedings to which Practice Direction 12B applies, the court may give directions referred to in paragraph (2) at any time after the court has received the safeguarding letter or safeguarding report referred to in Practice Direction 12B.”
Paragraph 3 will now read:
"Where paragraph 1(A) applies, the court will give directions about the timings and method by which the parties must tell the court if any of the issues in the proceedings have been resolved.”
Paragraph (4) will now read: "If parties do not tell the court if any issues have been resolved as directed under paragraph (3), the court will give such further directions as to the management of the case as it considers appropriate."
Paragraph (5)(a) will now read: "record the making of any directions to which this rule applies"
Paragraph (5)(b) will now read: "arrange for a copy of the directions to be served as soon as practicable on the parties".
3.6 – Application to which the MIAM requirement applies
Paragraph 6(1) removes ‘unless a MIAM exemption or mediator’s exemption applies’ and will now read:
- “The MIAM requirement applied to any application to initiate the proceedings specified in paragraph (2), unless a MIAM exemption applies”’
3.7 – Making an application
This section will now read:
‘An application to initiate any of the proceedings specified in Rule 3.8 must contain, or be accompanied by, a form containing either –
- (a) confirmation from an authorised family mediator that the prospective applicant has attended a MIAM; or
- (b) a claim by the prospective applicant that one of the MIAM exemptions applies .’
3.8 – Circumstances in which the MIAM requirement does not apply (MIAM exemptions and mediator’s exemptions).
This heading will now read: Circumstances in which the MIAM requirement does not apply (MIAM exemptions)
The list of exemptions and amendments are summarised in the list below.
Rule changes
The exemptions, as with other relevant parts of the FPR, have been updated with terminology from the Domestic Abuse Act 2021.
So ‘domestic violence’ is changed to ‘domestic abuse’ and the definition given in Section 1 of the Act.
Evidence requirements and practice direction changes
These remain much the same, with the below added, in line with statutory changes:
A new subsection (fa) in has been inserted into the Practice Direction at section 20 stating: ‘a domestic abuse protection notice given under section 22 of the Domestic Abuse Act 2021 against a prospective party.
‘In a family relationship’ has been replaced with ‘personally connected’, as per the Domestic Abuse Act 2021.
In relation to prospective parties being granted leave to remain in the United Kingdom, a letter from the Home Office can confirm this based on being a victim of domestic abuse, rather than being defined under immigration rules.
Rule changes
This section is unchanged.
Evidence requirements and practice direction changes
Unchanged.
Rule changes
This exemption can now only be claimed if there is ‘significant financial hardship’ and not just ‘unreasonable hardship’ to the prospective applicant, so this 3.8(ad) will now read:
‘Significant financial hardship to the prospective applicant’
Otherwise this exemption is unchanged.
Evidence requirements and practice direction changes
Unchanged.
Rule changes
This exemption is now called ‘Previous MIAM attendance or non-court dispute resolution attendance’
As before, an applicant will be exempt from attending a MIAM or NCDR process, if, in the four months prior, they have already attended a MIAM or NCDR.
However, a previous claimed MIAM exemption will now not, of itself, be an exemption. Those two exemptions have been abolished.
Paragraph (i) now reads: ‘In the four months prior to making the application, the person attended a MIAM or a non-court dispute resolution process relating to the same or substantially the same dispute; and
Paragraph (ii) now reads: ‘Where the person attended a non-court dispute resolution process, there is evidence of that attendance, as specified in Practice Direction 3A."
Evidence requirements and practice direction changes
This evidence must be written confirmation from the NCDR provider that the prospective applicant has attended.
Rule changes
Unchanged.
Evidence requirements and practice direction changes
Unchanged.
Rule changes
Unchanged.
Evidence requirements and practice direction changes
Unchanged.
Rule changes
This exemption has been narrowed and now requires proof of an inability to attend online or by video link.
There is also now a requirement to contact five (rather than three as previously set out) MIAM providers with a 15-mile range who are unable to provide appropriate facilities.
So, a paragraph has been inserted, reading: ‘h(ai) the prospective applicant is not able to attend a MIAM online or by video-link and an explanation of why this is the case is provided to the court;
Previously the rules stated that the details of the authorised mediators contacted ‘can be’ provided to the court if requested. This has been changed to state that they ‘are provided to the court’.
Evidence requirements and practice direction changes
An explanation of why the prospective applicant is not able to attend a MIAM online or by video-link must be provided to the court.
Rule changes
The exemption only applies if facilities cannot be made available for the prospective applicant to attend a MIAM online or by video-link. Existing provisions relating to being subject to conditions of bail or licence remain.
This exemption now reads: ‘in prison or any other institution in which the prospective applicant is required to be detained and facilities cannot be made available for them to attend a MIAM online or by video link.’
Evidence requirements and practice direction changes
Unchanged.
Rule changes
Unchanged.
Evidence requirements and practice direction changes
Unchanged.
Rule changes
Unchanged.
Evidence requirements and practice direction changes
Unchanged.
Rule changes
It is now required that the applicant is unable to attend a MIAM online or by video link, that there is no authorised family mediator within 15 miles of the prospective applicant and that they provide an explanation of why this exemption applies. This section now reads:
"(p)
- (i) the prospective applicant is not able to attend a MIAM online or by video-link;
- (ii) there is no authorised family mediator with an office within fifteen miles of the prospective applicant’s home; and
- (iii) an explanation of why this exemption applies is provided by the prospective applicant to the court."
Evidence requirements and practice direction changes
Unchanged.
The below exemptions have been removed and can no longer be claimed:
- where the applicant has made a previous application with the past four months and a MIAMs exemption was claimed
- where the application would be made within existing proceedings and a MIAM exemption applied at that time
- where the prospective application does not have contact details for the prospective respondent
- where one or both prospective parties are not habitually resident in England and Wales
- where the application is made following a filing of a relevant family application in the last four months and a MIAM exemption was claimed (see section 3.9 below)
- where there is a prospective application in existing proceedings, without a time limit as to when they started, and a MIAM exemption was claimed then
- a. the prospective respondent did not attend a MIAM (either because they were unwilling or because they simply failed to attend); or
- b. mediation is suitable as a means of solving the dispute
3.9 – Conduct of MIAMs
In line with the general changes that require a mediator undertaking a MIAM to offer and explain to parties all appropriate forms of NCDR, the below changes have been made to this section:
Section 2(b) will now read:
- “consider and explain the potential benefits of mediation and other methods of non-court dispute resolution may be most suitable as a means of resolving the dispute, and why; and’
Section 2(c) will now read:
- “assess whether there has been, or is a risk of, domestic abuse; and”
Section 2(d) will now read:
- “assess whether there has been, or is a risk of, harm by a prospective party to a child that be a subject of the application; and”
The paragraphs below have been added to this section:
- (e) indicate to those attending the MIAM which form, or forms of non-court dispute resolution may be most suitable as a means of resolving the dispute and why; and
- (f) where sub-paragraph (e) applies, provide information to those attending the MIAM about how to proceed with the form, or forms, of non-court dispute resolution in question.’
3.10 – MIAM exemption not validly claimed
This section is now called ‘MIAM exemption not validly claimed or no longer applicable’ and tightens how and when an exemption can be claimed. In particular, an exemption may previously have been valid but may no longer apply. This will be explored by the court at allocation, for private law proceedings, or at the first hearing for a relevant financial remedy hearing.
Paragraph (1) will now read:
(1) ‘If a MIAM exemption has been claimed, the court will inquire into whether the exemption –
- (a) Was not validly claimed; or
- (b) Was validly claimed but is no longer applicable.
The below is inserted under 1(b) as 1A:
- (1A) The inquiry referred to in paragraph (1) must be made –
- (a) when making the decision on allocation, in private law proceedings to which the MIAM requirement applies; or
- (b) when making a decision on allocation (if such a decision is made), and in any event at the first hearing, in proceedings for a financial remedy to which the MIAM requirement applies.
Paragraph 2 will now read:
- "If a court finds that the MIAM exemption was not validly claimed, or that it was validly claimed but is no longer applicable, the court will –"
Paragraph 3 will now read:
- In making a decision under Rule 3.10(2), the court will have particular regard to:
- (a) any applicable time limits;
- (b) the reason or reasons why the MIAM exemption was not validly claimed;
- (ba) the reasons why a MIAM exemption which was validly claimed is no longer applicable
- (c) the applicability of any other MIAM exemptions;
- (ca) the potential benefits of attending a MIAM, including the opportunity to receive information about options for non-court dispute resolution; and
- (d) the number and nature of issues that remain to be resolved in the proceedings.
Amendment of Part 9
Rule 9.15 (duties of the court at the first appointment): the parentheses at the end of paragraph (5) will read: "(Rule 3.4 makes provision in relation to cases in which the court considers non-court dispute resolution is appropriate.)
Rule 9.20 (consideration of the application at the first hearing): the parentheses at the end of paragraph (7) will read: "(Rule 3.4 makes provision in relation to cases in which the court considers non-court dispute resolution is appropriate.)"
Amendment of Part 14
Rule 14.8 (the first directions hearing): the parentheses at the end of paragraph (1) will read: "(Rule 3.4 makes provision in relation to cases in which the court considers non-court dispute resolution is appropriate.)"
Amendment of Part 28
Rule 28.3(7) now includes the below, after sub-paragraph (a)
"(aa) any failure by a party, without good reason, to –
- (i) attend a MIAM (as defined in rule 3.1); or
- (ii) attend non-court dispute resolution."