Mediation is not compulsory. It is a voluntary process where parties engage in a process to focus on working together to make decisions. These decisions can be about their children and/or financial affairs or any other concern which may arise out of the breakdown of a relationship. These usually take place in circumstances where normal communication is difficult or broken down completely. Mediation has to be appropriate both for the issues and for those seeking to participate and if it is not, then I am the first to tell people not to engage in the process.
You cannot be penalised for how you choose to resolve your family dispute. You have the right to decide how you wish to address your own affairs. However, as a practising solicitor, family mediator and parent, I personally believe and research will support that mediation is a far better approach to dispute resolution than the traditional route of separate legal representation.
What is the process?
The inception of the Children Arrangements Programme in 2014 resulted in a change to the Family Proceedings rules and in particular Part 3 stating that the instigating party to any family court application has to attend a Mediation Information Assessment Meeting (MIAMS). This must take place before any proceedings can be issued. In a MIAMS, Party A is given information about the dispute resolution processes available to them and how each of them works. The issues seeking to be addressed and the individuals concerned are considered, as are costs. This is to enable an informed decision as to whether or not the parties should undergo a mediating process.
Those who attend the meet, usually ask for an invite to be sent to the other party to attend a MIAMS with the same mediator. For more information about MIAMs meets check out our video here https://www.youtube.com/watch?v=Xs5h8-GH4xI&t=46s
If both parties want to engage in mediation then the next steps are for the mediation process to begin. If neither party wish to attend then a certificate is issued to say mediation is not appropriate. This enables the court process to then be instigated.
So why is the take up so low?
This is the theory! Statistics have recently been published by the Ministry of Justice. These show the number of applications made to the court in family proceedings compared to the number of MIAM certificates (per year since 2014). People are more likely to attend a MIAMS meeting if solely related to financial proceedings, rather than children. This is despite the huge benefits to children.
What do the stats say?
However in 2016, of the 89,886 Children Act applications made less than 40% of those issued actually had the Mediation section of the application form completed. Interestingly, only 16% of those applications had actually attended a MIAMS meet. For financial proceedings, the statistics read a little better. 72 % of applications issued had appropriately completed the mediation section. However, of that 72%, less than 30% actually attended the MIAMS meet.
These statistics help to explain why mediation take ups are so low. It’s surprising, considering all of the positive research showing huge benefits to those who engage with it – let alone the financial savings. So what can be done to change this? Is it appropriate to make mediation compulsory?
Dr Carol Coulter, the author of the Family Law Reporting Pilot Project in Ireland, reports in the Irish Times that Mediation should be compulsory in family law cases where children’s welfare is a priority. She said that family mediators were not regulated and public knowledge of the Family Mediation Service was limited.
By law, people seeking legal advice should be informed of the alternatives, such as counselling and mediation.
However, Dr Coulter said some solicitors treated this as “a formality” and there was no incentive for couples to seek mediation before turning to the courts. “Measures should be undertaken to oblige the parties in family law disputes to attempt mediation before going to the courts, especially where children are involved,” Dr Coulter said. “It should also be possible for judges… to insist on a minimum number of mediation sessions taking place before a case could be placed on the list for a hearing.”
Irish progress in mediation
Ireland certainly seems to be leading the way for progress in Mediation. On 14th February 2017, The Mediation Bill 2017 was published. This came into force on 1st January 2018. The object of this legislation is to bring mediation to centre stage. It aims to reduce the costs of litigation and to allow parties to solve their issues in a mutually satisfactory way. Under this legislation, solicitors and barristers must inform their clients of the benefits of mediating their dispute. Courts will also provide access to a mediator. This is so parties are informed of the process and how it may be used in their particular case.
What about England?
It seems that rules are not being complied with in England. These rules require parties to attend a MIAMS meet – the statistics prove this is not happening. This may well be through lack of advice or through courts not checking Applicants have mediation certificates. In the light of this perhaps it’s now time for these rules to be embodied in similar legislation here. Hopefully, this would make the process of separation and dispute resolution a better one for everyone involved.
Interestingly however having provided mediation services in England and Wales for over 20 years I am now receiving more direct referrals from clients seeking mediation as a first port of call. It seems there is an increasing demand for alternative Dispute resolution processes and Mediation is their first port of call. Lets hope this is the start of Societal change.
How can Family Mediation Solutions help?
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