Kim Beatson, Partner
Head of Family Law Team
email Kim
Mediation: the protocol advance
In April 2011 the UK Government introduced the Pre-Application Protocol for Family Mediation Information and Assessment Meetings. The motive was to help the public become aware of mediation and to encourage separating couples to see mediation as the first port of call rather than litigation.
Those parties wishing to make an application to court in England & Wales, whether publicly funded or private, must first consider alternative means of resolving their disputes (ADR). This requirement had only applied to publicly funded clients prior to that date. It was now extended to private paying clients.
Before an applicant makes an application to court, the applicant, or in practice the applicant’s solicitor, should contact a family mediator to arrange for the applicant to attend a mediation information and assessment meeting (MIAM). The purpose of the MIAM is to consider whether the dispute is capable of resolution through mediation or other form of ADR.
The parties may attend a MIAM together or separately. Any charge for doing so must be met by the parties if they are not eligible for public funding. Attendance at a MIAM is not compulsory. However, the judiciary could presumably consider costs sanctions if one party unreasonably refused to consider
mediation or other form of ADR.
Exemptions
A person considering making an application to court will not be expected to attend a MIAM in the following circumstances:
- where the other party is unwilling to attend
- where the mediator determines that the case is not suitable.
- domestic abuse cases involving police investigation or issue of proceedings within the last 12 months
- the dispute concerns financial issues and the applicant or another party is bankrupt
- parties are in agreement and there is no dispute to mediate
- the whereabouts of the other party are unknown
- the prospective application is for an order in proceedings which are already in existence
- the prospective application is to be made without notice to the other party
- urgent applications such as those involving risk to life, liberty to the applicant or his/her home, or to a child
- there is already social services involvement, or a child would be a party to the application
- the applicant or the applicant’s solicitor must contact three mediators within 15 miles of the applicant’s home, and if none is able to conduct a MIAM within 15 working days, the case will also be exempt from the process.
MIAMS in practice
Recent figures collated by the Ministry of Justice show a general increase in the number of MIAMs being undertaken across the country. In my practice we have compared April-August 2010 with the same period in 2011. We have had a 50% increase in MIAMs, leading to a 28% increase in actual mediations. It is too early to speculate on why the conversion rate is not greater, but you will see this is leading to a real cultural change and increased public awareness about ADR. It is a real opportunity for family lawyers to make a career change and to do the sort of work we enjoy.
Kim Beatson is a Partner and Mediator and head of Anthony Gold's Family & Divorce Law team. For further information email Kim or call 020 7940 4000 for advice on any aspect of family law.
