Family mediation: making the process mainstream
Mediation in family disputes has gradually become a formal part of the process since it was made a requirement in 1997 for legal aid-funded private law cases. In 2011, a new pre-action protocol set out an expectation that all parties to divorce proceedings, whether represented or not, would attend a mediation information assessment meeting (MIAM). The move was part of the government’s drive to divert cases from court, embodying the general mood for faster and more cost-efficient dispute resolution processes.
Now, under the Children and Families Act 2014, no private law case can proceed to court unless the parties have considered mediation – unless it involves children or there are abuse allegations, both of which are exempted.
“There needs to be a general education programme to make people realise mediation is more effective than a court order in dealing with practical everyday issues such as who’s picking the kids up from school,” comments Hazel Wright, a Partner and mediator at Hunters.
An easy fix to start with would be to rewrite the divorce petition, says Wright. “It doesn’t say anything about mediation or alternatives to the court-based process. That would help; it’s the biggest flaw in the system.”
Wright suggests that formalising the process further would be counter-productive, if not unworkable. “Judges shouldn’t be authorised to challenge MIAMs – to start with, what would they challenge and on what grounds? There’s also a problem with confidentiality, and mediation really only works if it’s voluntary and confidential,” she says. “All the judge could do is impose it halfway through, as a gatekeeper. Although the judge has no legal authority, that could help steer back onto the mediation track a lot of cases that have been hurried into court and have missed a proper MIAM stage at the beginning.”
“There can be a court hearing where disclosure takes place, and at that point the judge could say that there will be no further hearing and no more court time until there has been a full assessment meeting,” Wright says. “Things could progress much more quickly if this was ingrained in the procedure at every possible stage.”
“It won’t be long before family mediators start offering fixed-fee worth,” Wright posits. “Paying, say £1,500 for fixed-fee mediation would make people take notice of MIAMs in a way that statistics tell us they haven’t.”
Wright also says that solicitors coming through the ranks now shouldn’t be allowed to practise without being trained as mediators. “It’s not just about disputes but it’s about family relationships; the idea is to think not in terms of conflict but in terms of resolving differences.”
Developing lawyer-assisted mediation, where the parties agree to mediate but each remains represented by their solicitor, is another way of gradually squaring the circle. There is no set format yet, but it is becoming a popular choice, according to Wright. “It can be very effective, especially if it’s coming halfway through. You can also bring in experts such as IFAs, for instance, to discuss pensions.”
Read the full article, in Solicitors Journal via a PDF, here.