More people should consider mediation, says top family lawyer

Family law mediators are trained to help separated couples resolve disputes, including financial settlements and arrangements for any children.

Family law mediators are trained to help separated couples resolve disputes over issues faced by them, including financial settlements and arrangements for any children. A mediator is impartial, and meets the parties together to assist them in identifying those issues that are not yet agreed upon and help them to try and reach agreement.

In 2014, it because compulsory to attend a Mediation Information and Assessment Meeting (the “MIAM”) before making an application to court for financial proceedings upon divorce, or for private child law proceedings. This, it was hoped, would be a chance for warring parties to meet with a mediator before considering court, to understand the pros and cons of mediation as a process to help them resolve their issues, and hopefully, to use mediation to assist in reaching a solution. Attendance at a MIAM does not represent a commitment to mediate; it is an exploratory information gathering exercise.

Following a Freedom of Information request from National Family Mediation, the Government has recently released figures for the uptake of MIAMs prior to the issue of court proceedings in the first quarter of 2016. No doubt the figures will be disappointing – of 21,433 applications to court for Children Act proceedings (applications made for Child Arrangements Orders for example, formerly known as “contact” or “residence” orders), only 3,885 of Applicants attended a MIAM prior to making the application. This represents only a 22% uptake of what has been a compulsory requirement since 2014.

The figures in respect of attendance at MIAMs prior to the issue of financial proceedings on divorce are more heartening. Of 12,082 applications to court in the first quarter of 2016, 8,667 of applicants first attended a MIAM. This represents around a 72% uptake.

The most recent Legal Aid statistics for the period of April to June 2016 show that the number of mediation assessments in the latest quarter was 12% down compared to the same period in 2015.

Why?

A much publicised result of the Act which introduced the MIAM (the Legal Aid, Sentencing and Punishment of Offenders Act  2012) was the near abolition of legal aid in respect of private family disputes, save for in cases where there has been domestic violence. But mediation was not intended to, nor could it, replace the absence of legal aid and so access to legal advice. Some clients who may well be good candidates for mediation no longer have access to lawyers to advise them about of all their options, including the possibility and suitability of mediation in their case.

Many parties enter into mediation and pursue it to the conclusion of a satisfactory settlement in respect of finances, or child arrangements. It is usually advisable for parties going through mediation to retain their own solicitors to provide independent advice following sessions, and if agreement can be reached, the mediator will ordinarily advise that the parties’ lawyers liaise about the drafting of any final order.

Mediation is not a suitable forum for all cases and clients need to consider carefully how they wish to proceed. To assess whether mediation might be appropriate, parties should seek expert family law advice to gather an appreciation of the full range of options in light of the individual circumstances of their case.

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