Mediation in family proceedings - Goodman Ray

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Family mediation is the preferred method to resolve and prevent family disputes, especially where children are involved. Agreements that are freely negotiated by individuals can help restore communication, understanding and trust amongst parties. Mediation is particularly suited to private family law disputes as it is a confidential process which helps individuals to reach joint decisions without the use of the courts.

The mediator is there to make sure discussion is constructive and that each party has their say. Mediators are neutral but cannot give advice. However, they can give the parties as much information as they need about the law and their options. Once an agreement has reached, the mediator will draw up a “Memorandum of Understanding”, setting out what is proposed which can then taken to a solicitor, who can draw up and advise individuals on the necessary legal papers.

The courts actively encourage parties to mediate in family proceedings and over the last decade there has been debate about how far the courts can go in compelling unwilling parties to mediate. In Mann v Mann [2014] EWHC 537 Mostyn J, held that “if any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.”

The main tool used by the courts to direct individuals to mediation in private family matters is the requirement to attend a Mediation Information and Assessment Meeting (MIAM) where appropriate and an exemption does not apply. Since April 2014 the financial application (Form A) and the application for an order under section 8 of the Children Act (C100) have specific reference to attending a MIAM before the start of court proceedings. An applicant is required to record on the application form whether a MIAM has been attended and confirm why not if it hasn’t. This meeting can be a useful way of finding out more about mediation, although it is better for parties to have explored the option of mediation before deciding that they want to start court proceedings.

Despite the introduction of the statutory scheme in April 2014 figures obtained via responses to the Freedom of Information Request to the Ministry of Justice in April 2016 appear to indicate that MIAM attendance has not actually increased at all. Responses showed a MIAM had taken place in only 5% of new private law applications issued over the relevant period. This suggests that if cases that are suitable for mediation are going to be successfully diverted away from the court, a shift to a more rigorous approach at the application stage and at the first hearing will be required.

Kevin Skinner

Kawsar Ahmed

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