MIAMS and mediation: a beginner’s guide to a MIAM.

MIAMs

At Stowe Family Law Settlements, we regularly receive enquiries and questions from prospective clients about ‘MIAMs’ –Mediation Information and Assessment Meetings. MIAMs were first introduced in April 2011 but they weren’t compulsory back then and referrals to mediation have fallen dramatically since. But from 22 April 2014, if you are considering making an application to the court about your children you will most certainly need to know what they are, who can provide them and if you need to have one before issuing court proceedings (and in most cases you will).You may find the court won’t let you proceed until you have attended one, unless they are satisfied that you do fall within the range of exemptions.

MIAMs: what are they, exactly?

MIAMs are designed to ensure that couples are aware of mediation as a potential way to resolve their problems outside a courtroom.

A MIAM is a meeting with a mediator – or, for Stowe Family Law Settlements clients, a qualified lawyer-mediator – in which the couple is provided 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 various formalities to be observed where 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. The earlier that a couple engages in the mediation process by arranging a MIAM, the quicker a resolution may be reached.

MIAMs: who can provide them?

Not every mediator provides them because not every mediator is sufficiently qualified to do so.  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, a relatively small number of law firms are able to provide MIAMs. They include the Stowe Family Law Settlements at all our offices in North Yorkshire, West Yorkshire, Greater Manchester, Cheshire and Central London.

MIAMS: do I really need to attend? Is there a get out?

Refusing to attend could involve a refusal to issue proceedings by the court and additionally there are potential costs 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. 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.

*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.

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 genuinely cooperate with the process and is simply stringing it out to wear you down.

*Your mediator has insufficient knowledge of what you are entitled to in law.

*Emotions are running so high that reason and compromise are simply not possible. Successful mediation requires voluntary co-operation from both parties.

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 MIAMs is that mediation is often beneficial to couples involved in disagreements – particularly those pertaining to children.

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 reach an agreement on their issues.

Mediation can also save a lot of time, stress and the expense and costs of court action, while aiming to leave the relationship of the separated couple as undamaged as possible. 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 is less expensive 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 decide what to do next to resolve their differences.

In essence, a MIAM can serve to highlight and explore a couple’s choices in law. You can choose not to mediate after their initial meeting, and instead put it on hold until it may be more useful and after a court has taken a tighter grip of proceedings. Others who have all the information about the mediation process will of course decide that they do want to proceed down this path.

The important point about a MIAM is that it gives you an alternative to going to court and the with good will of both parties the mediation process could turn out to be a worthwhile decision.

18 comments

Marilyn Stowe - July 19, 2011 at 7:24am

James
Thanks for this post. It’s very interesting. What troubles me about mediation, and you have alluded to it above, is that it is required to take place too early in all cases. This means that court ordered disclosure won’t have taken place.
In many cases it won’t matter because the assets are straightforward and so it makes sense in terms of costs and time. But in many cases it will matter and therefore many cases are actually proceeding on the basis that a mediation may be suitable post disclosure but not before and there is no MIAMS at all. Do you
know how the courts are dealing with this?
It seems to me there is a conflict here between what the Ministry of
Justice is ordering people to do and what is in their best interests by using the court.
Overall however, what troubles me most about mediation is non lawyer mediation, in that couples who use only a non-lawyer
mediator won’t have the benefit of any knowledge at all on which they can rely, about what their entitlement is in law once all the assets are known unless they also take legal advice. I think it is absolutely vital that they do.
I say this because I heard about a nightmare case yesterday where a couple agreed a deal with a non lawyer mediator almost imposing the agreement on them that was literally unworkable and most unfair to both of them!
I know you and the others at SFLS are very keen on mediation because I agree, there are benefits, and I know too having been a mediator myself, it really can work.
But this stringent, blanket approach for everyone at the start and the
involvement of a sole untrained non lawyer working with a couple who are in the dark is surely a recipe for disaster?
Marilyn

James Thornton - July 19, 2011 at 12:20pm

Marilyn,
Many thanks for your comments.
Most local courts seem to have issued applications for ancillary relief without requiring a MIAM to have been attended where exactly the point you make has been referred to in the FM1 form.
It is too early to say for sure how the Judges themselves are dealing with the applications made since the new protocol came in. I think this week is around the time most cases will have got to the First Appointment stage if issued after 6/4/11.
I would like to think that the Judges will acknowledge that each case is different, and allow the flexibility that mediation could bring at all stages of a case, rather than the apparent assumption that it must be done at first blush.
James

JamesB - July 19, 2011 at 1:21pm

I don’t see how you can make people reasonable if they feel (rightly or wrongly) badly treated by the process.

JamesB - July 19, 2011 at 1:25pm

Seems to me you (law-makers) are shooting the messenger (the users who hate the system) by trying to make them agree to a system that they do not through mediation.

I do think that the imposition of settlements since unilateral no fault divorce by questionable unreasonable behaviour petitions and dodgy Ancillary Relief proceedures without fault which give the majority of assets to whoever has the children when (as in most cases) there is not enough money to go round and provide two decent households, is the root of the problem.

Until this is resolved the system will not work. It’s like smiling and being nice as you mug someone, you are still mugging them.

JamesB - July 19, 2011 at 1:28pm

I get so angry with the lawyers and government on this, they just don’t get it and the marriage rate goes down and people keep telling them, but they still don’t get it and we get this rubbish instead. I am off to go and stamp my feet, perhaps it might do some good for this problem, can’t do any worse than this (MIAMs) nonsense.

Marilyn Stowe - July 19, 2011 at 2:35pm

James thanks.
I dont think mediation is suitable for everyone. In order for it to succeed couples have to be comfortable with the process, be confident in the mediator’s ability, be able to negotiate without much emotion, have a full understanding of the other party’s position and be able to negotiate a reasonable deal.
At the beginning of a divorce in particular, few couples feel that way or have sufficient understanding to make such an agreement. In many cases, some people never feel that way and the court is left with no alternative but to apply the law.
The introduction of MIAMS was done by the Government, surprised the legal profession and is viewed by many as a cost cutting measure designed to keep as many cases as possible out of court irrespective of its suitability.
Marilyn

JamesB - July 19, 2011 at 3:30pm

Well, its a laudible aim. Problem is people are greedy and if they think they can get more in court, they will. If the other party thinks the other party will get more in court, and they think it is unfair, they will not settle either.

Comes down to fairness. Of which there is none in the current AR or divorce laws. Make them fairer and people wouldn’t go to court so often. As I say, it’s a good aim.

Divorce Blogger - July 19, 2011 at 3:50pm

The benefits of an uncontested divorce over its contested equivalent are clear and mediation can be immensely beneficial to divorcees as a result.

The introduction of compulsory, or nigh on compulsory, mediation, however, has clearly been introduced to offset reductions in legal aid. It has already been announced that individuals that require legal assistance with their divorces can all but forget legal aid (with the possible exception of victims of domestic abuse) and the government are clearly hoping that more and more couples will agree to settlements without the need for court proceedings as a result.

What concerns me about this is how many people will – knowing that they cannot afford the assistance of a solicitor and will be denied legal aid – merely accept what is on offer even with the assistance of mediation. Issues that have been raised here with regards to disclosure and mediators without legal qualifications only promote these trepidations.

Graham - July 19, 2011 at 11:15pm

Or they could do what I did, and with a heavy heart go into court as a littigant in person and in complete terror and be completely traumatised by the result. No wonder people aren’t getting married. They aren’t a good list of choices. Think I said that already.

JamesB - July 20, 2011 at 9:50am

Compulsary pre-nups would stop people going to court. Perhaps that is the answer instead. Don’t see these things solving the (unfair courts) issue.

Also, I put JamesB on this PC and Graham on the other and the names stuck.

JamesB - July 20, 2011 at 10:14am

Compulsory, sorry for the spelling and grammar errors, I won’t correct them in future and will do more to try to prevent them in the first place, like reading what I write before I submit it rather than rushing.

JamesB - July 20, 2011 at 10:50am

Change that to : Compulsary pre-nups which would also be able to override the CSA would stop people going to court. That is the answer instead.

JamesB - July 20, 2011 at 12:35pm

They would also solve all of the problems with the CSA. Like a magic wand and a solution to all these problems.

JamesB - July 20, 2011 at 12:35pm

All divorce and CSA problems that is.

louise - August 2, 2011 at 8:10pm

I have to say that the introduction of compulsory MIAM’s is as ham-fisted as the current government’s cuts in legal aid.
Aside from the obvious points about disclosure in AR matters, there is the issue of delay in contact proceedings. Any of us who spend time in court know that there are parents (usually, but not exclusively, mothers) who will flout court orders; who are intransigent- implacably hostile even.
There is little prospect of success in mediation in these cases which require robust, early intervention from the court and I suspect the new P.A.P. will simply result in greater delay and an even longer status quo of no contact for some parents. Time will tell.
It is also apparent that there are simply not enough trained mediators (let alone mediators with legal knowledge) around to deal with this requirement.
I suspect that this will lead to more problems in high conflict cases and may even exacerbate some it is intended to alleviate.

Tulsa Divorce Attorneys - September 11, 2011 at 1:59am

Mediation is not something that couples should ‘jump head first’ into – with a little bit of prep, and little bit of planning, mediation can be very successful.

Stitchedup - April 16, 2014 at 10:11am

Quite frankly, I don’t see what the problem is or what all the fuss is about. If you don’t want to go to mediation just make an an “ALLEGATION of domestic violence”. Nothing has to be proven, just make an ALLEGATION….. avoid mediation, get legal aid, secure occupation of the house, custody of the kids, a major share of assets and a non-mol/gagging order that forbids the accused of saying a word to you about it. Easy Peasy.

Neil Thomson - September 15, 2014 at 3:14pm

I have just paid £100 for a MIAM which unfortunately was a complete waste of time. I attended but my Ex refused without stating a reason. I can see that in some circumstances a MIAM would be very useful when both parties are looking to resolve financial and or child issues.
With regard to making false allegations to negate MAIM I would suggest this is difficult. The completed form must have evidence of mistreatment or any other exemption. The document is accessible here:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/form-a-eng.pdf

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