It has been reported in today’s press that new laws are due to be announced that will mean thousands of couples who separate each year will have to consider mediation before they apply to Court.
In reforms included in the children and Families Bill, a parent seeking a court order to resolve a dispute over children, finances or dividing property must first attend a MIAM (Mediation Information and Assessment Meeting). You’d be forgiven for thinking you were experiencing a déjà vu – was this not exactly the same as the “compulsory mediation” purportedly introduced on 6th April 2011? At the time the MoJ said that every party must attend a MIAM before they could issue an application in the family court. How that worked in reality was that when an application was made, annexed to it should have been a FM1 Form signed either by a mediator or solicitor confirming whether a MIAM had taken place and if not, why not. So what happened? Why didn’t mediators see a sudden increase in the number of people attending MIAMs? As a practicing solicitor, it soon became apparent that most courts were issuing applications regardless as to whether a FM1 Form was annexed to it or not.
So what’s changed since April 2011 that may have prompted the reintroduction of compulsory Mediation? The answer is simple, the withdrawal of legal aid for the vast majority of family law cases. This will result in more and more litigants in person clogging up an already stretched court system, so something needs to be done and, according to the Government, that something is to make mediation compulsory.
However, legal aid for mediation is still available. But the message doesn’t seem to have got out that this is the case – as evidenced by the fact family mediators saw the number of referrals to their practices drop significantly after the withdrawal of legal aid for family law cases. Perhaps more needs to be done to make people aware that, if eligible, mediation is free and perhaps by making mediation compulsory this is the Government’s aim. One of the reasons Lawyer Supported Mediation came about was to provide affordable legal advice and support to parties engaged in the mediation process, whether they are paying for mediation or the public purse.
As both a Family Law Solicitor and Family Mediator, I see it from both sides. As a family mediator, I see it when mediation works and separating couples take charge of their own decisions relating to their children and/or finances; they work together, with the help of a mediator, to reach a final resolution that they can both live with. But I also see the couples where there is an imbalance in power or one party is unwilling to disclose vital information; mediation is limited in what it can achieve to rectify this and in such circumstances the remedy can only be found in court.
One of the key principles of mediation, and why it is more likely to work, is that it is voluntary. If this principle is removed, only time will tell whether more mediations will fail due to the fact that people feel forced to be there. I am a great supporter of mediation and ADR generally, but in some cases court is the better forum. To encourage parties to mediate can only be a good thing, but should we be forcing them?
Family Law Solicitor Sarah Thompson is a trained Collaborative Lawyer and heads up Slater and Gordon’s family mediation service. For a free initial consultation call freephone 0800 916 9055 or contact us online.