Compulsory meetings for all: what does it mean for mediation?

From April 22, under section 10 of the Children and Families Act, anyone wanting to issue family proceedings will
have to attend a mediation information assessment meeting (MIAM). Compulsion will not be limited to those
on legal aid.

Until now, lawyers can tick a box on the FM1 form saying they don’t believe a MIAM is necessary. In the future, mediators will have to fill in the form. Courts have been told not to proceed with applications unless mediation has been considered and to inquire
into exemptions.

The aim is to increase the take-up of mediation, which has been surprisingly slow to catch on for self-funded clients and fallen dramatically for those
on legal aid.

Mark Lopatin, founder of Lawyer-Supported Mediation, obtained the first detailed evidence of the collapse in publicly funded mediation
since LASPO through freedom of information requests
last year. He found there was
a 43 per cent drop in the number of legally aided mediations starting in November 2013, compared
with the previous year.

“I do not believe that compulsory MIAMs will increase numbers substantially, which is what the Ministry of Justice is hoping,” Lopatin said.

“There will be an increase in mediations, but before legal aid was taken away and there were more compulsory referrals, it took a lot of referrals to generate a high number of mediation starts.

“I think all this is a bit unfair on mediation. You need to encourage willingness much earlier, before people go to court. Many people on low incomes go to court now because they think they will not get legal aid for mediation.

“That’s what happens when you leave the mediation world to fend for itself, and mediators to compete with lawyers.
We need mediation to scale
up and become a recognised
and affordable means of
solving disputes.”

Stephen G Anderson was a solicitor for 19 years in Suffolk until last October, when he decided to commit himself entirely to mediation.

He is proud to have allowed only one of his family cases to reach the courts since 2005 and pointed out that new court procedures requiring mediation to be considered at every stage in proceedings involving children may turn out to be more significant than compulsory MIAMs.

“There are two camps – those who think compulsory MIAMs will make little difference
and those who think they will make some difference,” Anderson said.

“This isn’t the way to change the culture. Making one particular party only go does not really help. Quite a lot of respondents don’t want to attend because they fail to understand the potential of what mediation can offer.

“There’s a turf war going
on between lawyers and mediators. Lawyers are desperate to hang on to
clients and need to understand how clients can be helped by mediation – not at the last minute, when correspondence between the parties bears
no fruit.

“We need a systemic approach, making people part of the system rather than being thrown from pillar to post. Family law can seem quite a broken process.

“The culture change would mean going to a neutral person when you need to see someone – not a lawyer.”

Joanne Major, managing director of Major Family Law in Newcastle, became a provider of Lawyer-Supported Mediation in the north-east this month.

She said courts across the country had been inconsistent in their approach to mediation and the aim of the new
single family court was to
create consistency.

“When people are referred to mediation properly, the chances of success are really quite high. It’s important to send people the right message.

“Consumers are not really informed about mediation. It’s all well and good to educate lawyers, but the public lack knowledge about what mediation really means – some people still think it means marriage guidance.

“That is why it is not working. We’re relying on lawyers to refer work in, when they’re probably concerned about handing work over to mediators. For there to be a fundamental change, lawyers would have to embrace it properly.

“It’s not our job to educate the public, it’s the government’s. How many people know that mediation is still free on legal aid? Not many.”

Julia Thackray, former head
of family at Penningtons and course director at CLT, said that the real benefit of mediation was that it was “a process in which the couple themselves take the important decisions
on their families’ futures,
rather than ‘taking a gamble’
on giving that decision to a third party – a judge at court.

“With the help of a good mediator, very many couples can use the process to
great effect.” 

A difficult but necessary process     Currently, lawyers can tick the box at the end of the FM1 form, saying they do not believe a MIAM is necessary, and far too many lawyers are doing this. Courts cannot stop you issuing and lawyers can say to their clients: ‘Don’t bother with mediation, you don’t have to.’   “It is up to the district judges to make a fuss about it, and in most cases they don’t. A lot of judges have not bought into ADR. The guidance means that we can expect this to change. Courts won’t be able to issue proceedings unless the FM1 is signed, by a mediator and not by a lawyer.   “The mediation to be successful still has to be voluntary. The applicant has to go to the MIAM, but the other party is not forced to. More people will go to MIAMs, because they have to, but this will not transform the mediation figures, which have fallen off a cliff because of LASPO.   “Mediation services are closing up and down the country. It is totally the opposite of what the government wanted.   “Courts are getting more and more crowded with litigants in person and staff are demoralised. Some clients are waiting months between hearings and it costs a lot of money to  go to court.   “Mediation is a difficult and challenging process, but it is clearly a less expensive solution than court. It is not suitable for everyone, but it is appropriate for far more people than are currently taking advantage of it.”   Nigel Shepherd is a partner at Mills & Reeve and vice-chairman of Resolution