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Family Mediation and MIAMs – statistics revealed

The charity National Family Mediation (NFM) has today announced findings obtained through a freedom of information request that in 2014/15, out of 112,000 private family law applications to the court, only 1 in 20 of the applications had followed the statutory rule for the applicant to have attended a Mediation Information and Assessment Meeting (MIAM) first.

NFM have announced that this shows that the Government’s attempt to keep more families out of court has failed.

The MIAM is a meeting in which a potential court applicant will first meet with a mediator on their own to address the issues and discuss the benefits of mediation. Following the MIAM, the mediator will assess whether or not the case is suitable for mediation, and if it is, the potential applicant is then able to decide whether or not to proceed with mediation.

The protocol for making a family application changed in 2014 to make it compulsory for potential applicants to first attend a MIAM before going to court on any family matter. There are exceptions to this, for example where there has been evidence of domestic violence and also in cases involving the social services for child welfare concerns.

In general however, the test is quite high for those ‘exceptional’ cases and the courts are supposed to ask for quite stringent evidence before waiving the requirement for a MIAM. It is quite surprising therefore that so many cases have been able to pass through the court without the MIAM being undertaken first.

As a family solicitor and a family mediator I am in quite a unique position to see both sides of this process. In my experience, the vast majority of cases are ‘suitable’ for mediation and the cases where there are exceptional circumstances are quite rare. I would be surprised if out of 112,000, 107,000 of those involved exceptional circumstances where mediation was not possible and hence removing the need for a MIAM.

So why is this happening? I can think of three potential reasons:

1.     Solicitors acting for applicants knowing how to get round the requirement for a MIAM

I would hope that solicitors would be open to their clients attempting mediation. I know that we receive plenty of referrals to our mediation practice from other solicitors and whilst there may still be a cynical few, I think in general family solicitors are supportive of mediation.

2.     Applicants without a solicitor not being aware of the requirement for a MIAM

‘Litigants in person’ can tend to be given a large amount of leeway by the court and so often are able to not directly follow the rules of an application through court with as much consequence as solicitors. However, criticism has been levied at the court that the evidence required to negate a MIAM is too strict, rather than being too lax. I have met with clients as who have had their application rejected because of this and so again I would be surprised if an applicant is able to avoid having to attend a MIAM just because he/she doesn’t have a solicitor.

3.     Court administration staff not checking the applications thoroughly enough

In the early period of the change of rules I would have thought that this would be a valid reason and the most likely. However, as pointed out above, the evidence required is now quite strict and I would think that fewer applications are succeeding without evidence of a MIAM. Indeed, the most recent figures quoted by NFM reveal that 6% of applications had a MIAM in 2015 compared to 1% in 2014. Still small numbers, but an increase nonetheless.

Whatever the reason, I think it is safe to say that the Government’s attempt to keep families out of court has been unsuccessful. The sheer numbers of new cases and unrepresented parties alone provides further evidence for this.

NFM believes that “More government support is needed to inform, educate and publicise the fact that MIAMs are compulsory in order to ensure the law is properly enforced and much more mediation is delivered.”

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