The Children and Families Bill: the merits of the MIAM by guest blogger James Thornton

A few weeks ago the government announced a wide-ranging package of family law reforms in the Children and Families Bill, and MPs have their first chance to debate and discuss the measures set out today when the bill reaches it second reading in the House of Commons.

The planned changes include the introduction of compulsory family Mediation Information and Assessment Meetings (MIAMs), for everyone planning to go to court to as part of a family dispute. These meetings are designed to help people explore mediation and make a decision as to whether it would be an appropriate or viable approach to their case.

MIAMs were first unveiled in non-compulsory form back in April 2011, along with a requirement that the mediator and their legal advisers should complete a new form (FM1) for submission to the courts in case the mediation was unsuccessful.

The merits of the MIAM have been much discussed in family law circles. It is an issue of particular interest to me as an experienced mediator with Stowe Family Law Settlements. Mediation is a delicate but ultimately very satisfying process which can lead to constructive and relatively amicable settlements. It is potentially cheaper and certainly quicker than court action.

In my experience, however, the take up of mediation as an alternative to court proceedings has been mixed since April 2011. Some courts, it seems, do not require an FM1 to be submitted, while others do not appear to have rejected or queried applications when the FM1 has stated that mediation would be unsuitable.

Why is this happening? It may be that the judges know that mediation is inappropriate for many cases in the early stages, particularly if there has not been full, frank and clear financial disclosure. It can be an especially awkward fit where there is an imbalance in bargaining power between the couple involved.

But a good family lawyer-mediator can certainly help to level the playing field because he or she will have experience of obtaining satisfactory disclosure and, what’s more, they will be able to get it from both sides. A family lawyer mediator will also have experience of the most likely outcomes and can help the parties focus on the important issues in the case.

There can be little doubt that the decision to make MIAMs compulsory marks the importance now being placed on mediation – and information about mediation – as an alternative to court. The Children and Families bill does not, however, set out how this requirement would operate in the real world. Only the quite separate Family Procedure Rules contain details of when a MIAM should be conducted, what exemptions there are and what the consequences of failing to attend one should be.

The cynic in me cannot help thinking that this new requirement is linked to the government’s determination to remove eligibility for legal aid from the majority of family law cases from April 2013. You needn’t look too hard to see a link to all this additional emphasis on mediation.

Mediation is also by its very definition a voluntary not compulsive process, and it is not the only option that could or should be recommended to couples. The ‘collaborative approach’- -which involves round table meetings with clients and their solicitors – as well as arbitration are both also available as alternatives to the “traditional” court based process. At Stowe Family Law Settlements, we can offer these options to couples willing to try a more innovative approach.

Ultimately, as a lawyer-mediator I welcome these changes introduced by the Children and Families Bill. Whatever the government’s motives, the new measures are at least a formal recognition that mediation can a viable alternative to court disputes. Of course there will always be times when mediation is not appropriate, but if it is not necessarily the right path to go down at the start of legal proceedings, it can still have a place later on.

Mediation works when both parties are on the same emotional footing and trust the other to act honourably. With an experienced family law mediator in place, it can work wonders, especially where children are concerned.

I will be very interested to see whether this new insistence on MIAMs does eventually make it on to the statute books, and if it does, how it ends up working in the real world.

 

James Thornton has specialised in family law since qualifying in 1996.  He has considerable experience dealing with the financial issues arising upon divorce, particularly where substantial personal, business and pension assets are involved. 

James Thornton is an Accredited Specialist member of Resolution, a member of the Regional Committee of Resolution in North and West Yorkshire and a member of the West Yorkshire Family Justice Council. He also regularly appears on local radio discussing matrimonial issues.

James has a young family and, when he is not spending time with them, he enjoys music, motor sport and is learning to appreciate DIY.

 

 Photo by Karolina Kabat via Flickr under a Creative Commons licence

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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4 comments

David Mortimer - February 26, 2013 at 1:18pm

Mediation is unlikely to work to optimal effect in the absence of an understanding either of what sort of settlement is reasonable or of what sort of settlement the Courts are liable to impose.

Bruno D'Itri - February 27, 2013 at 3:27pm

There are parallels between ‘family dispute’ mediation and other types of ‘mediation’ or ‘negotiation’, such as those in the world of business or politics.

In every case, the aim of mediation or negotiation is to reach a fair and mutually-beneficial agreement or compromise.

In corporate and political dilemmas – as in family disputes – an imbalance of power can be used by one party as a means of securing a better deal, leaving the other party feeling hard done by. Why agree to a fair settlement when you know that you can gain more by not agreeing?

How, for example, can mediators – such as Tony Blair – help Palestine and Israel to negotiate a fair and mutually-beneficial settlement, if Israel is plainly the far more powerful party?

Family mediation is far more likely to be successful IF the current imbalance of power between resident and non-resident parents is rectified. That is precisely what our Government’s proposed shared parenting amendment to the Children Act intends do to.

If both parents start the ‘negotiation’ with an equal right to be meaningfully involved in their children’s lives, a fair and mutually-beneficial resolution is far more likely to be achieved.

Regards
Bruno D’Itri

JamesB - February 28, 2013 at 2:47pm

or where the settlement the Courts are liable to impose is unreasonable.

JamesB - February 28, 2013 at 5:27pm

Mediation is unlikely to work to optimal effect in the absence of an understanding either of what sort of settlement is reasonable or of what sort of settlement the Courts are liable to impose… or where the settlement the Courts are liable to impose is unreasonable.

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