Marilyn Stowe Blog

MIAMs and mediation: a beginner’s guide. By guest blogger James Thornton

At Stowe Family Law Settlements, we have started to receive enquiries and questions from prospective clients about MIAMs – or, to give them their full name, Mediation Information and Assessment Meetings. MIAMs were only introduced in April 2011, but if you are considering divorce you will need to know what they are, who can provide them and if you need to have one before issuing divorce proceedings.

MIAMs: What are they, exactly?

As of 6 April 2011, many couples going through a divorce are now expected to attend an initial MIAM, and consider mediation as an alternative form of dispute resolution. The aim: to ensure that couples are aware of mediation and understand how it could support them during separation and divorce.

A MIAM is a meeting with a mediator – or, for Stowe Family Law Settlements clients, a qualified lawyer-mediator – which provides a couple with information about the mediation process and the legal framework that applies to their situation. It is a formal assessment of mediation’s suitability for their individual case. The parties can tell their stories, working through discrepancies with the neutral mediator.

The meeting also provides the couple with additional information about funding options and their eligibility for public funding is assessed, ensuring that they receive the most cost-effective advice.

The process provides time for formalities to be observed when necessary, such as screenings for domestic violence or child abuse issues (either of which could render mediation unsuitable for the parties in question). Whether or not mediation is the most suitable course of action depends on individual circumstances, and the role of the MIAM is simply to measure those circumstances to determine suitability.

MIAMs: Who can provide them?

The earlier that a couple engages in the mediation process by arranging a MIAM, the quicker a resolution may be reached.

Although MIAMs were introduced at short notice, not every mediator provides them.  Only those mediators who fulfil the government’s stringent criteria can provide MIAMs.  They must hold specific qualifications and accreditations, belong to a member organisation of the Family Mediation Council, hold professional indemnity insurance, meet certain requirements for continuing professional development, have a professional practice supervisor and be in active practice as a mediator. They must also complete a further, rigorous Family Mediation Council course.

At the time of writing, there is a relatively small number of law firms outside London able to provide MIAMs. They include the Stowe Family Law Settlements offices in North Yorkshire and Cheshire. Our practice also provides MIAMs at its office in Central London.

Also at the time of writing there is no accurate, nationwide index of mediators who are able to provide MIAMs. (When there is, we will update this post with the web address.)

MIAMs: Do I need one?

The current expectation across the judiciary and the Ministry of Justice is that before applying to the court, couples will attend a MIAM to see if mediation is appropriate to resolve their particular dispute.

Further mediation is not mandatory, but  at the time of writing it is still too early to say what judges will do in circumstances where a couple have not undergone a MIAM.

There are potential cost implications and sanctions that could be imposed by the court if the process has been ignored. Alternatively, the proceedings could be halted altogether until a MIAM has been completed by the parties.

Certain exemptions do apply. You are not expected to attend a MIAM if the mediator is satisfied that one or more facts apply to your case. They include the following:

• One party is unwilling to attend a MIAM and consider mediation.
• A mediator has decided that your case would not be suitable for a MIAM.
• An allegation of domestic violence has been made within the last 12 months.
• The dispute concerns financial issues and one party has been declared bankrupt.
• Any delay caused by attending a MIAM would cause a risk of significant harm to a child, a significant risk of a miscarriage of justice, or unreasonable hardship.
• The whereabouts of your former partner are unknown.
• There is current social services involvement, as a result of child protection concerns.
• You contact three mediators within 15 miles of your home and none is able to conduct a MIAM within 15 working days of the date of contact.

For further information, you can read the Ministry of Justice’s Pre-Application Protocol for Mediation Information and Assessment here.

MIAMS: Is family mediation wrong for me?

Mediation isn’t a perfect solution, and it isn’t suitable for everyone. For example, mediation may not secure the best outcome if any of the following situations apply to your case:

• You doubt that your former partner will provide full and frank disclosure of his or her finances.
• Your mediator has insufficient knowledge of what you are entitled to in law. (Please note: if your former partner does not provide full and frank disclosure, this is likely to be the case – and it is not the mediator’s fault!)
• Emotions are running so high that reason and compromise are simply not possible. Successful mediation requires co-operation from both parties.

One criticism levelled by lawyers is that a couple is required to attend a MIAM before the parties are required to make full and frank disclosure of their finances. If the couple decides to pursue mediation and one party is subsequently less than honest about their financial situation, the other party may be placed at a disadvantage and/or mediation may fail.

As Marilyn Stowe has noted in a previous post on this subject:

It is a pity that such heavy emphasis has been attributed to pre-application assessment [the MIAM], when involvement in mediation is by no means a guarantee of success. [Mediation] can turn out to be a complete waste of time and costs, particularly in financial cases, if insufficient care is paid to obtaining good legal advice and ensuring the assets are fully disclosed and agreed. A client may turn up at his or her solicitor’s office, clutching a draft agreement – only to discover that it isn’t worth the paper it’s written on. Then they are back to square one, months down the line, with costs rising.

MIAMs: Is family law mediation right for me?

The rationale behind the introduction of MIAMs is that mediation is often beneficial to couples involved in disagreements – particularly those pertaining to children and finances.

Firstly, it provides the couple with the opportunity to pause and reflect on the nature of their differences. It takes place in a neutral environment with a trained mediator present who can help the couple towards reaching agreement on their issues.

Mediation can also save a lot of time, stress and the potentially expensive and timely costs of court action, while aiming to preserve the future relationship of the parties who are or have separated. This, of course, is particularly important where children are involved.

Mediators come from different backgrounds. Stowe Family Law Settlements, for example, is a specialist family law mediation practice. Although we have mediators on hand, almost all are lawyer mediators: family lawyers who are also qualified and experienced mediators.

Mediation incurs a lower overall expense when a couple share between them the cost of the mediator, rather than each having to pay for their own lawyers to negotiate on their behalf. More specific information can also be given regarding the relative value of court proceedings, so the couple is fully informed and can make the decision about what to do next to resolve their differences.

In essence, a MIAM can serve to highlight and explore a couple’s divorce choices. You can of course choose not to mediate after their initial meeting. However once they have all the information about the mediation process, many couples decide that they do want to proceed down this path.

James Thornton is a lawyer mediator at Stowe Family Law Settlements and a partner at Stowe Family Law’s Harrogate office. With 15 years’ experience, James’ specialisms include dealing with the financial issues arising from divorce, particularly when substantial personal, business or pension assets are involved. His expertise also extends to cases involving children. A former member of the Law Society’s Family Panel, James is an Accredited Specialist member of lawyers’ organisation Resolution, sits on the North and West Yorkshire Resolution committee and is a member of the West Yorkshire Family Justice Council.