Consultation Paper on Alternative Dispute Resolution - Law Reform ...

insist on the application of the original terms of the
agreement. 85
5.72 In these circumstances, the Commission recommended that the court
should have the power to confirm, cancel or vary any terms in the agreement,
but should not disturb transactions which have already been concluded under
the provisions of the original agreement. 86 The Commission also recommended
that in every case where an application is made to a court to have an
agreement, that affects the parties' financial or property relationships recorded
or made a rule of court, there should be an obligation on the court not to grant
the application unless it is satisfied that the agreement is a fair and reasonable
one which in all the circumstances adequately protects the interests of the
parties and of any dependent children. 87
5.73 The 2007 Report for the Courts Service Family Law Reporting Pilot
Project recommended that:
―Cases that ended in a mediated or negotiated settlement should be
separately listed and ruled. Consideration should be given to
establishing a court of limited jurisdiction, presided over by the county
registrar, who could rule such consents‖ 88
5.74 The Commission reiterates its previous recommendations set out in
the Commission‘s 1996 Report on Family Courts (LRC 52-1996) in relation to
enforcement and review of mediated agreements.
(5) Mediation Schemes in Other Jurisdictions
(a) England & Wales
5.75 In Al-Khatib v Masry 89 Thorpe LJ stated that mediation should be
considered at each level of court proceedings, even at Court of Appeal level,
because
―… there was no family case, however conflicted, that was not
potentially open to successful mediation, even if mediation had not
been attempted or had failed during the trial process.‖
85 Law Reform Commission Report on Family Courts (LRC 52-
1996).Recommendation 50 at 137.
86 Ibid. Recommendation 51 at 137.
87 Ibid. Recommendation 52 at 137.
88 Coulter Family Law Reporting Pilot Project: Report to the Board of the Courts
Service (Courts Service, October 2007) at 61.
89 [2004] EWCA Civ 1353.
185