Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
People are understandably anxious about how their assets will be divided, what will happen to the family home and who will care for the children. As well as starting divorce proceedings, they may also commence costly and time consuming court proceedings to deal with child and financial issues, without properly considering alternative methods of dispute resolution (ADR) such as mediation but also other options such as arbitration or collaborative law.
Changes to the law
On 22nd April 2014 The Children and Families Act 2014 came into force and with it the requirement, subject to exceptions, for applicants in any proposed child or financial application to the Family Court to attend a Mediation Information and Assessment Meeting (MIAM) before being able to proceed with their application.
Although a MIAM will be compulsory it is important to note that mediation, or any other form of ADR, is not. The purpose of the MIAM is purely to ensure that the applicant and ideally both parties to the proposed proceedings have understood the alternatives to court litigation and the costs, procedures, risks and time involved in the court process compared with the alternatives, including mediation.
The MIAM will also enable the mediator, who undertakes the MIAM, to determine if the applicant (and the other party, who will also be invited to a separate or joint MIAM) is suited to mediation. The mediator may determine that either the case and/or the party/parties are not suited to the mediation process.
Exceptions to attending a MIAM will be where there is a risk of domestic violence, a party is bankrupt or where there is a need for urgency in commencing court proceedings.
The typical duration of a MIAM can vary from 30 to 60 minutes.
Benefits of mediation
Mediation is and will continue to be a voluntary and confidential process during which an independent and impartial mediator supports parties in reaching their own solution to their problems.
If the mediator determines the case and/or the parties are not suited to mediation, either at the MIAM or after mediation has commenced, or if the mediation process breaks down, they can then sanction the commencement of court proceedings by signing the required form and providing it to the parties/their solicitors for it to be sent to court with the court application.
If mediation goes on to work, it will avoid more costly and time consuming court proceedings and will have enabled the parties to reach their own decision and hopefully, where there are children involved, in a more child focussed way.
The mediation process
The mediator will work with the couple providing information where necessary, legal or otherwise in as many sessions as the parties want or require until a decision is reached or it is determined that mediation can no longer proceed. The mediator will not make decisions or give individual advice and the couple will work out the future arrangements for themselves.
Lis Howe, senior associate in the family law team at Anthony Collins Solicitors and a qualified mediator and provider of MIAMs comments:
“Approximately 40 per cent of marriages end in divorce. Ending a relationship as amicably as possible through mediation reduces financial pressure and stress on both parties and more particularly for any children coming from the relationship”.
Mediation is a voluntary, impartial and confidential process, which helps couples reach their own solutions to their problems.
Choosing a mediator who is also a qualified solicitor with detailed knowledge of family law will ensure that all relevant matters are explored and addressed. This includes, if necessary, recommendation that the parties suspend the process to take independent legal advice before either returning to mediation or bringing it to a close.
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