ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
requirement for MIAM providers to “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 “provide information to those attending the MIAM about how to proceed with the form, or forms, of non-court dispute resolution in question”. • Parties are now required to file an FM5 stand - ard form setting out how they have engaged with ADR. Failure to engage in ADR without good reason may result in a costs order for the party not engaging. The court may also adjourn proceedings if they feel ADR has not been attempted. Exemptions From Requirement for MIAM Proceedings to which the MIAM requirements apply are set out in FPR 2010, Practice Direction 3A, paragraphs 12—13. For the vast majority of financial remedy proceedings and private Chil - dren Act proceedings, a MIAM is required prior to proceedings being issued. For the vast major - ity of financial remedy proceedings and private Children Act proceedings, a MIAM is required. For financial remedy proceedings, a MIAM is not required where a consent order is being lodged or for enforcement of any order made in pro - ceedings for a financial remedy or of any agree - ment made in or in contemplation of proceed - ings for a financial remedy. In Children Act proceedings, a MIAM is not required for: • a consent order; • an order relating to a child or children in respect of whom there are ongoing emergen - cy proceedings, care proceedings or supervi - sion proceedings; or
• an order relating to a child or children who are the subject of an emergency protection order, a care order or a supervision order. There are various exemptions from the require - ment for a MIAM. FPR 3.8(1) sets out the circum - stances in which the MIAM requirement does not apply. The most commonly used exemption is for cases of domestic abuse. Judges have a range of powers for non-com - pliance with the MIAM requirement, including directing that a party must attend a MIAM and for proceedings to be adjourned to allow media - tion to take place. Further, at the conclusion of proceedings, a judge can impose costs orders against the party that has not complied with the MIAM requirement. A judge may also make a direction order for par - ties to attend arbitration. If such a direction is breached because one party does not attend the arbitration or refuses to engage with the arbitra - tion process, that party can be ordered to meet the other’s legal costs. Legal Status of Out-of-Court Agreements Parties’ financial claims against each other upon divorce are only extinguished by a sealed finan - cial order of the court. If parties reach an agree - ment through mediation, arbitration or any other ADR method, it is important that a court order is drafted and sent to the court to be sealed. Otherwise, an ex-spouse may issue financial remedy proceedings in the future.
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