April 19, 2023

What’s new in family mediation?

Posted in Family
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Compulsory family mediation

The big news is that the government is now consulting on whether family mediation should be made compulsory.

Those seeking legal aid to fund a family law case (subject to some exceptions) have been required to attend a Mediation Information and Assessment Meeting (MIAM) since 1997.

In April 2004 there was a change to the law, which required separating and divorcing couples who wished to use the court process to resolve issues between them, to first attend a MIAM.

The thinking behind this was that, if couples met a mediator and found out more about the mediation process, this may encourage them to attempt mediation and divert them from the court system.

Some courts and judges have enforced this requirement more robustly than others. It is estimated that only 30% of those who are eligible to attend a MIAM have actually attended one.

The family court system is creaking under the strain of the huge backlog of family cases and there are huge delays in cases being heard.

The government has now clearly expressed its intention to make it compulsory for couples to make a “reasonable attempt to mediate” before issuing proceedings. This will be subject to the usual exemptions for those cases where there are domestic abuse or child protection issues.

To have your say on this important issue, click on the link below by 15th June 2023.

Supporting earlier resolution of private family law arrangements.

New MIAM standards

New standards governing the conduct of MIAMs by mediators came into force on 1st October 2022.

The new standards cover the information which mediators must provide at a MIAM. As this is extensive, it is expected that a MIAM will normally take around an hour and a mediator must now record the reason/s if a MIAM lasts for less than 45 minutes.

There is further emphasis on safeguarding being carried out effectively by underlining the fact that MIAMs should be conducted separately with each participant and there is a presumption against immediately consecutive MIAMs. There is also a presumption against a joint mediation session taking place immediately after a MIAM – participants should be given an opportunity to process and consider matters discussed at the MIAM before making a decision.

Mediators must take all possible steps to ensure that both participants are given the opportunity to attend a MIAM. Even where a mediator has seen the first participant and it is clear from that MIAM that mediation will not be proceeding, the mediator must offer the second person an opportunity to attend a MIAM. The mediator should explain that the mediation will not be proceeding but is not permitted to disclose the reason for this.

It is hoped that the new standards will bring a greater level of uniformity to the practice regarding MIAMs.

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