Mediation in family law – Is it now compulsory?

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Many clients are under the misconception that mediation is a form of counselling in an attempt to reconcile the marriage or the parties’ differences, perhaps concerning contact with the children.

This is not the case. Mediation works as a way for the parties to attempt to settle their differences in the presence of a trained mediator who is an independent third party. The parties are invited to attend separate meetings for the mediator to establish what their views are/what they would like to achieve. A joint meeting is then set up for both parties to attend to discuss their issues in front of a mediator.

Many clients are opposed to this as they do not want to be in the same room as their ex or believe that no rational agreement will come out of the meeting.

However, by way of the new Family Procedure Rules 2010 implemented in April this year, it is now compulsory for all parties to attend a meeting with a mediator to establish whether mediation will be beneficial to the case. These meetings are known as Mediation Information Assessment Meetings (MIAM). If it is viewed as not, the mediator then signs a Form M1 which is sent to the court when that client makes their application. This is a necessary requirement and if it is not dealt with it may lead to delays as a judge could order the parties to attempt mediation before a court hearing can be established.

Clearly, there are some circumstances in which mediation cannot be possible; if the case involves domestic violence for instance. In those cases, applications to court need to be dealt with quite quickly and the solicitor dealing with the case is able to sign the Form M1 to confirm the circumstances. Also, if there is an injunction out on the offending party or a restraining order, mediation will not be an option.

Mediation can be viewed as beneficial for the parties as it focuses their minds on what needs to be achieved in the meeting. If it is regarding the finances of a divorce, agreements or actions can be put in place to further this. If a children matter is in dispute, perhaps regarding contact times and dates, then a written agreement can be established that the parties can work towards.

You may ask, where does a solicitor fit into all of this? Why do I need one if there is a written agreement? One answer might be that you don’t need one, if the parties stick to the agreement.

However, what clients must be aware of is that any agreement made at mediation is not legally binding. Therefore, when an agreement has been reached between the parties, and this can only concern the finances of a divorce (it does not apply to children matters) a Consent Order can be drafted by a solicitor for one party, having it approved by the other party, it is then sent to court for approval by the District Judge.

Please bear in mind that if a solicitor has not previously been instructed in this case and does not have knowledge of the background of the case it may be that disclosure of financial information will have to take place between the parties and their solicitors. Mediation has helped so far in that it has cut down on the amount of negotiation and without prejudice letters that could go back and forth between instructing solicitors. This also cuts down on costs for a privately paying client, as well as time. If the client happens to qualify for Legal Help (a limited form of public funding) they could qualify for free mediation.

In short, mediation is now compulsory before ALL applications for children matters and financial disputes in divorce are issued with the court. However, it may only consist of an assessment meeting with the mediator to establish whether mediation can be explored or not. Solicitors are still able to deal with many matters concerning divorce and children but are aware that referral to mediation is now a compulsory element as supposed to just an advisory or potential one in some cases.