Update: divorce

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.

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.

Who is not expected to attend?

Annex C of practice direction 3A provides that MIAMs are not required:

• if there is a history of intimidation or domestic violence in the relationship;
• if the dispute is about money and either of the spouses or former partners are bankrupt;
• if the spouse or former partner cannot be traced;
• if three mediators within 15 miles of the home have been contacted and it is not possible to get an appointment with any of them within 15 working days;
• when the order which would be sought is about a child who is already involved with social services because of concerns for protection;
• if one party is applying to court without notice;
• for cases involving emergency injunctions; or
• where the respondent refuses to attend the information session.

The protocol does not apply to proceedings for enforcement, to protect financial assets or to protect a child.

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.

How does one find a MIAM mediator?

Paragraph 3 of annex A of the protocol refers practitioners to local family courts, the Community Legal Advice Helpline (0845 345 4345) or at the Direct Gov website. Although the protocol refers only to applicants contacting a 'family mediator', in practice their member bodies impose conditions before authorising them to conduct MIAMs. The Family Mediation Council (FMC) will only approve family mediators who have the agreed minimum requirements which can be found online.

Are there enough trained MIAM mediators?

Before 6 April 2011 there were only 100 mediators qualified to undertake MIAM assessments, but all of the mediation trainers have been providing MIAM assessment training days to increase this figure. Mediation providers are also increasing the number of courses to train family mediators on foundation mediation courses.

Are all mediators legally qualified?

No, at least 25 per cent of mediators come from a counselling background.

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?

• Who will start the divorce.
• How to divide finances.
• Child contact arrangements.
• Child residence.
• Grandparents' contact.

Is public funding available?

If it becomes clear that either party may be entitled to public funding, the mediator will suggest that the parties are assessed by a mediation practice which offers public funding mediation.

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.

Can mediators meet the children?

Yes, there is additional training which mediators can do so that they can then carry out direct consultations with children. The consultation is done alone with the child. Where the child is old enough to express their wishes and feelings and if both parties agree it can help the process if the child explains to the mediator what they would like in terms of contact and living arrangements. The discussions between the mediator and the child are then later reported back to the parents.

Can there be more than one mediator present in the room?

Yes, it is common for mediators to co-mediate. Some mediation practices such as Family Mediation In Action are able to offer a male-female mediator team where required.

Does mediation work?

It depends what separating couples want to get out of the mediation sessions. There tends to be between two and five joint sessions. If the parties want to try to agree how to divorce amicably, decide how to divide their financial assets, and, if there are children, where they will live and how contact will work, using mediation can sometimes be a better forum than going to court. But not every case will work or fit in with mediation. Where children are young, agreements regarding children can be reviewed in further mediation after a few months or years, as the original agreements will probably need to be updated the older the children get.