Family mediation week 16-20 January 2023
The mediation process
Mediation is a form of dispute resolution along with arbitration and negotiation. Use of ADR (Alternative Dispute Resolution) methods are preferred by the courts where possible, with court being used as a last resort.
Since April 2014 it has been a requirement (unless exempt) for an applicant to a section 8 order (CAO, SIO, PSO) to enter into the mediation process and complete at least a MIAM (mediation information assessment meeting). Mediation is a process that is somewhat misunderstood and frequently dismissed as a stepping stone.
In speaking to clients and members of my Facebook Group I find the most common reason given when indicating that mediation wouldn’t be suitable is that they believe the other party wouldn’t be open to negotiation and flexibility, or just wouldn’t engage in the process at all.
My experience too is that mediation is rarely successful. I am aware of the confirmation bias in my role, in that I generally find myself talking to people after mediation has failed, indeed my clients and group members who tried it find it declare it successful around 10% of the time. Why, then, does there exist legislation behind making it a necessary step?
Firstly we must remember the extent to which we operate inside of an echo chamber. Some of those among us that are involved in family court will be there because mediation has failed. We don’t tend to hear about cases that were settled via mediation and without court intervention.
Secondly it’s also easy to dismiss mediation as a failure because not all issues were resolved. It can be that some aspects were agreed but others weren’t, and that the parents involved considered it to be a failure because they were unable to come away with a full agreement.
Mediation during proceedings
At this point, I do have to make the case for mediation during proceedings. I have seen over the past 2-3 years a sizeable increase in cases where the court sent the parties back to mediation, because it was seen as a more suitable way to resolve disputes. There is a much higher success rate when mediation is ordered during proceedings. I have found that people are much keener to negotiate at this point. I believe this is because having dipped a toe into proceedings either one or both parents have been given an idea of a possible or likely outcome, and are then keen to negotiate on that basis.
For example. A NRP (Non-Resident Parent) makes an application for a joint ‘lives-with’ or ‘50/50’ order on the basis of equal rights for both parents, but the RP disagrees. They begin proceedings and it quickly becomes apparent that via CAFCASS and during the first hearing (FHDRA) the court are not prepared to discuss this because the NRP lives 50 miles away. They say that this would be unfair on the child for school runs, among other things. Whilst the NRP fumes and says this is unfair, they also now have some parameters in place for negotiating. Had this parent attempted mediation then perhaps they had approached it with a ‘50/50 or nothing’ attitude, and hence mediation would have been unsuccessful. Now however, the parents mediate about what instead the contact could possibly look like – for instance every other weekend and half the school holidays. This parent wasn’t aware that 50/50 wasn’t on the table before, but now it would be much more possible to mediate.
As another example. A Resident Parent believes that there should be no contact between the Non-Resident Parent and their child. On this basis mediation is declined. Following a court application by the Non-Resident Parent, the court and / or CAFCASS decide that there is no issue, and that contact should re-start on a stepped basis. How this happens really needs a lot of input from both parents, and will take time – particularly as this might not have been an outcome that one or both parents previously expected at the time of initial mediation attempt. Both parents giving mediation a proper chance at this point could be really helpful. The parameters are again set out by the court, leaving the parents to negotiate the finer details that court may not have the time to fully explore.
How do we define success anyway?
We’ve discussed above about how mediation being initially attempted, dismissed or declined, and how this may be because mediation is considered unnecessary or a skippable stepping stone due to the lack of success rates. What is success? Perhaps the low success rate is based on people’s opinions who considered success being only if all possible issues were resolved. Mediation does not need to solve every single issue. Narrowing the issues is a perfectly acceptable use of time. It might be that there are issues that are agreed on for example arrangements just for Mother’s Day and Father’s Day!
What are the steps to take when entering into mediation?
Let’s assume you’ve decided to give it a try. Up until now I’ve referred to mediation as a whole, but there are actually two distinct parts to mediation; the MIAM (mediation Information Assessment Meeting) and Mediation itself. They are actually quite different.
It’s really important to differentiate between these two parts. For instance – legal aid can be available for both parties to attend MIAMs, but not mediation itself. The Government voucher scheme is available for mediation instead, and has a value of up to £500. It is applied for by the mediator, and has been extended on at least one occasion, but you will have to check at the time of writing whether it is still running.
Exemptions from MIAM
1) Recently attended a MIAM already:You have attended a MIAM already, within the last 4 months, and you have a signed letter from your Mediator. In order to use this you will need to upload or post a copy to the court, following the instructions found online.
2) Already in proceedings:You are already mid proceedings and are submitting a C2 to ask for a type of order. Instead, you should be able to link this application to existing proceedings, meaning a MIAM isn’t necessary.
3) Child Protection Plan: Your child is on a protection plan, or the local authority (children’s services / social services) are currently involved in enquiries relating to emergency, care or supervision orders.
4) Domestic Abuse: You will either need to show that the other party has been arrested or is involved in criminal proceedings, or you can provide a written statement from your GP or domestic abuse agency stating that they believe you have been the victim of abuse.
5) One of you lives abroad: This one is still in place but soon to be scrapped due to the prevalence of remote possibilities.
6) No contact details: You have no idea where the other person lives. The court will expect you to take reasonable steps to find them. If you have a valid email address or phone number this is enough.
7) Urgency: Where there is no time to enter into the possibility of mediation due to an immediate threat to the child. This will allow you to go straight to court on the grounds of urgency.
8) No available mediators: If there are no mediators available within 15 working days then you can apply straight to court.
9) You agree: If you’re submitting a C100 consent order then you don’t need to attend a MIAM or mediation.
10) Disability: If you’re unable to attend due to a disability, including not being able to attend a remote MIAM.
11) Prison or Bail: If you’re in prison or on bail conditions you don’t need to do a MIAM.
12) You’re a child: Children are sometimes allowed to bring proceedings. They are exempt from MIAM.
Legal Aid for MIAMs
It is possible to receive legal aid funding to cover MIAM attendance. If one party meets the eligibility (which does NOT require domestic abuse to have happened – you would be exempt in that situation anyway) then it covers both of your MIAMs.
Furter information:-
Choosing a Mediator
So lets assume that you’re not exempt from a MIAM. The next step would be to select a mediator. Prior to the pandemic this almost always meant choosing one in your local area. Indeed, if there were no mediators within 15 miles of your address you were exempt! Not any more, that’s been removed from the list of exemptions. Now you can choose from hundreds of mediation companies. That’s right, I said companies. They are businesses. Do go in with your eyes open in that respect. Be mindful of any that try to sell you other products or support services.
The Family Mediation Council https://www.familymediationcouncil.org.uk/ is probably a good place to start your search. Only mediators accredited by the FMC can sign your forms allowing you to make a court application. Their website features a useful search function.
At the MIAM
By now you are probably wondering what exactly happens at a MIAM appointment! I don’t blame you.
The MIAM itself will take on average between 20-60 minutes. The clue is in the initials – Mediation Information Assessment Meeting. The first part – information – is the mediator explaining what they do, what the process entails and how they might be able to help. The assessment part is determining whether mediation is suitable for the case.
But, you say, we’ve already established that I’m not exempt and I will have to complete a MIAM! Yes, but that still doesn’t mean the mediation will be suitable for the case. That is one of the things the mediator must establish at the MIAM, in the assessment part.
Your ex may simply decline mediation, but then again, they may not. You won’t necessarily know this until you’ve spoke to the mediator yourself. Even if you think they will decline you will still have to complete a MIAM so that you can complete the application to court as mentioned above.
There are all sorts of reasons why someone might decline mediation, but the most common two are that:-
The other party is alleging domestic abuse and therefore mediation is unsuitable
The other party doesn’t believe the two of you will be able to agree on anything
Will the other party look bad for not trying mediation?
In short, no. In my experience it’s rare for MIAM attendance to even be mentioned by court. Leaving aside the fact that mediation discussion is privileged (meaning it can’t be relied upon in court unless making a consent order), courts don’t seem to be particularly concerned about penalising a parent for not attending a MIAM. Indeed, how would they? It can’t override what child arrangements are made due to non attendance of a MIAM because this would be contrary to the Child Welfare Principle.
s1 Children Act 198. SOURCE
Other punishments such as a fine or community service order for not attending a MIAM would seem harsh and draconian, hence nobody gets punished. However, the courts are increasingly ordering people back to mediation where they feel an agreement could be reached (see above: Mediation during proceedings)
Apprehension about mediation
Seeing somebody you really don’t want to see, to discuss something you may not even wish to discuss is hard, and perhaps that’s part of the reason that many parents decline mediation. However, some of those people might not be aware of an option called shuttle mediation. Shuttle mediation is a particular type of mediation where there may be a high degree of animosity between the parties. So they don’t actually discuss things face to face, and instead the mediator ‘shuttles’ between the two rooms. That’s right. Each parent is in a meeting room by themselves, with the mediator moving between them. This can also be replicated remotely ie via Zoom or Teams.
At mediation
Whichever way you end up at mediation, be it via court ordering it, via shuttle mediation or some other way, you are there to discuss the arrangements for your child/ren. There is a lot of ground to cover. Try to focus on any elements you agree on to narrow the issues between you. Fundamentally you will need to work out with whom the children live primarily, or whether you are committed to an even divide of time – often known as shared care or 50/50. It might be that you can’t agree, and that’s ok too. Make a note and move on. It could be that you simply agree on video call contact when the children aren’t with you, or perhaps details for how you will approach the child/ren’s birthdays.
You don’t have to agree on everything in one go. Sessions will be spaced out to give you time to think and reflect in between. Do be willing to compromise. Remember – we aren’t in that perfect situation anymore. You’ve split up, so regardless of why that happened you both need to put the children’s needs before your own and that might mean being willing to compromise on a few things.
For a list of things you might want to consider then there is the CAFCASS Parenting Plan although if you’re on my Facebook group or regular reader of my blog you’ll know that I don’t fully endorse it. This is because it goes into so much detail that it might actually be responsible for causing conflict:-
“You wrote little Johnny would be wearing purple socks on a Thursday but he’s wearing red! You’ve breached our agreement!!!!”
Of course, this is a silly argument to make, but you hopefully get the picture.
Outcome of mediation
There are three possible outcomes to mediation.
It failed with no agreement being reached, and the mediator has signed your form meaning you’re able to make an application to court.
You agreed on some aspects but not enough to reach an order by consent, and the mediator has signed your form meaning you’re able to make an application to court. Hopefully the other parent will still agree on those aspects you’ve agreed, but they’re under no obligation to do so. You cannot rely on anything previously agreed here, because mediation is non-binding, and privileged discussion.
You have agreed on all aspects – congratulations! Your mediator will write up your agreement. You have two options next:-
Take the agreement on trust with the other parent. This is not legally binding.
Make an application for a consent order, to take what the mediator has written and ask the court to ‘rubber-stamp’ it. This makes it legally binding.
What next?
If you decide you’re ready to make your application to court, and you have your signed page from the mediator then you’ve got everything you need! I often complete applications for my clients and so I can advise that the time required varies between 45-90 minutes depending on the level of complexity of the case.
You might also want to check out a blog about your day in court here: (link: https://www.namf.co.uk/post/your-day-in-court)
Please feel free to book an appointment to speak to me about your case and to make your application. I can be booked via my calendly page calendly.com/firstfamilylaw or otherwise please email me on neilandrewsmckenzie@gmail.com or contact me via my website.
Neil Andrews 18.01.23
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