Family mediation - compulsory or not?

We are often asked the question ‘do we need to attend mediation before going to court?' The answer is both yes and no.

Since April 2011, all parties to a potential court application have been expected to first consider mediation before making any family finance and/or children law application.

Prior to that date, this requirement was limited to those who were funded by legal aid. Essentially therefore, privately paying clients could make an application to court whether they had first considered mediation or not.

The Pre-Application Protocol for MIAMS (the Mediation Information and Assessment Meeting) changed this by providing that ‘Parties will be expected to explore the scope for resolving their dispute through mediation before embarking on the court process’.

The interesting thing to note is that, despite most media coverage proclaiming that all couples are expected to mediate before they can go to court, the protocol doesn’t actually state that mediation is a necessity (hence the rather woolly answer to the question posed above).

Mediation remains optional and so the MIAM can therefore be defined as the meeting before the mediation sessions, rather than the mediation itself.

In some instances the mediation can follow straight after the MIAM and parties are actually able to attend together. However in most circumstances the MIAM is used to give the potential applicant information and guidance, in order for them to go away and consider mediation instead of a court application.

There are of course exceptions to the requirement for the MIAM, particularly in circumstances for example where there has been domestic violence in the relationship; where local authority children’s services are involved in the care of any child; or perhaps where there are serious child welfare concerns. The list is not exhaustive and in fact it is often the responsibility of the mediator to identify any concerns, which may mean that mediation is not appropriate.

Studies (and experience) have revealed that attitudes towards MIAMS amongst the profession, the courts and the judiciary since April 2011 have been mixed. Under the current Protocol a judge is able to make an Order that the parties attend a MIAM before hearing the case any further and can do so at any stage in the case.

This is perhaps one of the reasons why change is imminent to the wording. Rather than stating that parties ‘will be expected’ to consider mediation, the Protocol will instead say: ‘Before making a relevant family application, a person must attend a family mediation information and assessment meeting’.

This will still keep mediation optional but will mean that attendance at an information meeting is compulsory, barring specific exceptional cases.

Mediation is clearly not for everyone. However without the necessary information, guidance and signposting, many members of the public will assume that costly and lengthy litigation is the only option in family disputes. A MIAM usually lasts about 30 minutes and just might save you the stress of a court application.

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