Solicitors Journal Publication – Austin Chessell looks at FAQ on the new mediation information assessment meetings
Posted on September 5, 2011
Compulsory mediation meetings for couples came into effect from 6 April 2011 for anyone who wishes to apply for a children or financial order in the family courts. The new rules require each party to attend a mediation information assessment meeting (MIAM) with an approved mediator. Practice direction 3A, supplementing the Family Procedure Rules 2010, describes the MIAM requirements which are part of the pre-action protocol set out in those directions.
Despite mediation itself having been around for a long time, it is still early days and practitioners and clients are waking up to the impact which the change will have for clients and the courts. It remains to be seen whether MIAMs will result in an increased use of mediation as an alternative means of resolving disputes. To help practitioners understand MIAMs and the queries couples have about it, I have set out some of the questions I have been asked since 6 April.
What is a MIAM?
A MIAM is a confidential meeting between each of the divorcing spouses or separating cohabiting couples which takes place separately with a mediator who can deal with the issues and is qualified to carry out the MIAMs. It is hoped that early information and advice about mediation will help to bring down the number of court applications which do not need to be made as the parties progress to resolving their issues with the assistance of a mediator.
What happens during a MIAM?
The background circumstances are discussed, and the process of mediation in the context of the separation is explained. It then considers whether mediation would be appropriate as a means of resolving potential disputes which would otherwise need to be settled by the courts.
Will a MIAM be cheaper than the court fees?
The Legal Services Commission payment rate is currently £87 plus VAT per party for each MIAM. For privately funded MIAMs the fee is at the discretion of the mediator, but it is likely to be cheaper than the court issue fee of £200 for children applications and £240 for applications concerning family finances.
Is mediation compulsory?
No, but if you are making the application to court for children or financial matters then you will need to attend a MIAM. After the MIAM either party can opt out of the mediation process if it feels it is not appropriate to continue by mediation.
Who is not expected to attend?
The protocol expects any respondent to have attended a MIAM if invited to do so, and at the first hearing the court will ask if the parties have considered mediation. The court will take into account any failure of not complying with the protocol and can decide to refer the parties to a meeting with a mediator before the proceedings can continue further.
What form will be completed by the mediator?
If the parties wish to proceed with hearings at court rather than continue by mediation, form FM1 must be completed by the mediator. This form will need to be presented to court by instructing solicitors or the parties themselves if acting in person.
Is a MIAM compulsory for a divorce petition?
It is only compulsory for children and financial applications (unless one falls within one of the above exclusions), not for straightforward divorce applications.
Will the case be referred back to the same solicitor?
The mediator will usually refer the client back to the referring solicitor in the event that mediation is not chosen, or is commenced but is unsuccessful for any reason, or an agreement reached in mediation requires a consent order, or if the mediator recommends the parties seek legal advice on certain points.
What issues can mediation resolve?
• Separation and divorce.
• How to divide finances.
• Child contact arrangements.
• Child residence.
• Grandparents’ contact.
• Civil partnerships
• Same sex partnerships
Why mediate rather than litigate?
• In matters of child disputes, mediation helps to maintain communication and allows the couple to continue to cooperate as parents.
• Mediation reduces hostility, bitterness and misunderstanding.
• Mediation focuses on the child’s needs for parents to cooperate as much as possible.
• Mediation avoids a sense of ‘winners’ and ‘losers’ by reaching an agreed solution which will have some benefit for all.
What documents can the mediator prepare?
If an agreement is reached, it can be documented in a memorandum of understanding (MOU) if the parties so require. This covers all the issues such as what will happen to the former matrimonial home, residence and children’s contact patterns with the parents and the overall financial settlement. Summary of financial information – the disclosure of both parties is documented and signed by each party and the mediator.
Is the MOU binding?
No. If one wants the financial agreement to be made legally binding one should take the agreement to a solicitor who can then draft what has been agreed into a consent order.