Costs sanctions against those who unreasonably refuse to mediate Halsey v Milton Keynes General NHS Trust
While the courts can not force parties to settle their disputes outside the courtroom, currently, the direction of travel of the courts decisions and legal rules appear to make it more likely if a party has failed unreasonably to use mediation costs against them, even if successful may be ordered as a sanction. There is more and more traction in favour of making ADR compulsory, as indicated in the Civil Justice Council’s report in Summer 2021 which accepts, in principle, the concept of compulsory ADR.
COMPULSORY MEDIATION ? June 2021
Civil Justice Council Report
The legality question: we have concluded that parties can lawfully be compelled to participate in ADR.
The desirability question: we think we have identified conditions in which compulsion to participate in ADR could be a desirable and effective development.
MIAMS: What is a MIAM? Family Justice Council
MIAMS April - June 2021 MIAMS starts were 43% higher & family mediation starts up 55%
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Articles Law & Advice
THE DIVORCE, DISSOLUTION AND SEPARATION ACT 2020, introduced 'no fault' divorce and Royal Assent was given on 25 June 2020. All divorce will be online at MyHMCTS. Financial Orders still will need court approval.
KUMAR V LONDON BOROUGH OF HILLINGDON 2020 Mrs Justice Collins Rice, dealing with the Local Authority in a Special Education Needs told Hillingdon in no uncertain terms to just get on with it,
'….the case for getting this mediation back on foot...... is pressing, and Hillingdon must now do so'.
The way in which it can be a appoached must not allow unequal power, and if participants wish to use lawyers, this should be allowed to ensure no manifest unfairness could arise.
CAFCASS ADVICE FOR CARERS & COVID https://www.cafcass.gov.uk/covid-19/
MEDIATION POST LEGAL AID SENTENCING & PUNISHMENT OF OFFENDERS ACT 2012 (LASPO)
This Act removed Legal Aid for many case but retained funding for mediation, The Children & Families Act 2014 placed a statutory requirement for all to attend mediation prior to court proceedings (save for emergencies and in cases of domestic violence).
In October -December 2018 mediations rose 6%
Article Family Law Week https://www.familylawweek.co.uk/site.aspx?i=ed201049
BOOK The Psychology of Conflict: Mediating in a Diverse World. Paul Randolph (2016)
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