Head of Family Law and in-house counsel at Kuits Solicitors
The Ministry of Justice recently published the Legal Aid Statistics for October to December 2015, which revealed that the number of Mediation Information and Assessment Meetings (MIAMs) have continued to decline and were down by 16% in the last quarter.
MIAMs were introduced in April 2011 and became compulsory for divorcing couples to attend in April 2014 before they’re granted permission for their matter to be progressed to court.
The aim of the meetings is to assess whether mediation is an appropriate way to resolve any issues and, ultimately, to try to avoid court proceedings.
The Advantages of Mediation
While mediation is not suitable for every case, it certainly has its benefits. Going to court may provide closure, but it puts decision-making in the hands of a judge. Mediation, on the other hand, provides the divorcing couple with far more control and allows them to work together to reach practical agreements.
Cooperating to reach conclusions leads to a far less hostile environment, where communication is encouraged and stress levels can be reduced.
Mediation also often allows for a far speedier process, which is significantly cheaper than litigation, and it can be especially useful when reaching decisions in relation to any children, where flexibility and compromise is vital.
Why aren’t MIAMs Leading to More Mediation?
Despite the above advantages, the introduction of compulsory MIAMs have not resulted in the desired increase in the use of mediation.
There are several reasons for this.
The first, quite correctly, is the existence of several exemptions that automatically permit non-attendance at a MIAM, based on the fact that mediation would be unsuitable for the couple in question.
Logical exceptions include situations where there has been an allegation of domestic violence in the last 12 months, where the whereabouts of one ex-spouse is unknown, or where any delay caused by attending a MIAM would cause significant harm to a child, a significant risk of a miscarriage of justice, or unreasonable hardship.
These exemptions, together with several others, are perfectly understandable and forcing such couples to attend mediation would be, at best, pointless and, at worst, unethical.
However on the other side, a MIAM form can be ‘signed-off’ if a session could not go ahead due to the non-attendance of one of the parties (without good reason). This option, which arguably reduces the process to a box-ticking exercise, seems to be counter-productive.
After all, MIAMs are either compulsory or they are not. Failure to show up should not be as accepted as a satisfactory excuse in the way it currently is.
Furthermore, even when separating couples willingly attend a MIAM, it only results in the use of mediation in less than a quarter of cases. For this reason the question must be asked, if compulsory MIAMs are not successfully encouraging the use of mediation as a method of alternative dispute resolution, then what will?
A Proposed Solution – Make Mediation Compulsory Instead
It seems that the obvious way to increase the use of mediation is to make mediation itself compulsory.
While this appears somewhat draconian at first glance, if approached sensibly it may have the desired outcome and inconvenience the parties no more than attending a MIAM currently does.
Firstly, it would be feasible to require compulsory attendance at a couple of mediation sessions, while retaining the exemptions that currently exist for MIAMs. The information that is currently provided at a MIAM could either be discussed at the beginning of the session or sent ahead in the post, with the mediation session highlighting the benefits that can be achieved.
After all, the best way to decide whether something will be a success is to try it out.
Those who oppose compulsory mediation will argue that it would be unfair to impose it on the unwilling couples who, to put it bluntly, cannot stand the sight of each other. It is important to remember however, that there is no need for such parties to even see each other at mediation – it can take place in separate rooms, with the mediator going in-between.
The compulsory nature of the first few sessions would also remove the need for one of the parties to suggest the use of mediation, putting the separating couple on an equal footing from the offset.
Compulsory mediation may not appeal to everyone, however the suggestion is born from the fact that couples are already being ‘forced’ to attend MIAMs, which are not obtaining the desired results. The obligatory nature of this has already been established so extending this principle to require attendance at an actual mediation session would simply increase couples’ awareness of its benefits.
Let’s not forget, mandatory mediation would only be for couples who wish to proceed to court – those who are willing to negotiate by themselves, or through solicitors, would be left alone to do so.
But we think it’s time to face reality – MIAMs aren’t the best way to encourage mediation – mediation is the best way to encourage mediation.”
Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.