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Mediation becomes compulsory for divorcing couples

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Posted by Justin Creed on 25 June 2014

Justin Creed - Family and Divorce Lawyer
Justin Creed Head of Family Law

In an effort to reduce the number of divorce cases ending up in court, the government started to encourage divorcing couples to use mediation as the first port of call. Since April 2011, any application to issue court proceedings was supposed to be accompanied by a form (FM1) that confirmed that mediation had been considered in all cases involving money and/or children.

As it transpired, this requirement appeared to be largely ignored and court proceedings commenced regardless, with no obvious sanctions for non-compliance. Therefore, under the Family and Children Act 2013, attending an initial Mediation Information Assessment Meeting (MIAM) (which is essentially an introduction to the mediation process, not the process itself) became mandatory in April 2014, except for cases where safety (primarily domestic violence and / or abuse) is an issue.

Why mediation can help

There are very good reasons for attending mediation. Mediation is not about saving a relationship but is a process to settle the issues between couples in a more conciliatory, less confrontational way than going straight to court. This is particularly helpful when children are involved and can be less damaging than the adversarial court process.

Mediators are independent, professionally trained (many lawyers, including members of our family team, are trained mediators) and help couples to see the wood for the trees. An agreement reached during mediation can be legally binding and is inherently more flexible than a court order. It can be changed as and when circumstances dictate, for instance when the children grow up. It also gives both parties more control over the final outcome as through the Court it is often left to the Judge to make the final decision. Last, but by no means least, the mediation route is significantly less expensive: current estimates put mediation at £500 - £1000 whereas the courts can be upwards of £4000.

An important aspect is that neither party is given advice within the mediation. The mediator will stress the importance of both parties taking legal advice to complement the mediation that takes place. This ensures that all parties understand the legal consequences of the agreement they reach. For a fixed fee, our family team offers staged help with mediation.

Where the new rules stumble

There are drawbacks to the system. Although both parties are expected to attend a MIAM (and any failure to do so may well result in the judge halting proceedings and insisting that a mediator is consulted before going any further), there is no compulsion to embark on the mediation course itself. If one of the parties is not committed to the mediation process and tries to withhold information or is generally uncooperative, then mediation is not likely to succeed. There is also the issue of timing: if a suitable mediator cannot be found within 15 miles of where the couple live or cannot hold a MIAM within 15 working days, then a MIAM is not required.

How MIAM works

The divorcing couple will be invited to attend a MIAM, presided over by a mediator who will discuss the case and decide whether or not it is suitable for mediation. Other forms of alternative dispute resolution will also be discussed as will any eligibility for legal aid (which is means tested). If one half of the couple refuses to attend, then the FM1 section of the application to court can still be completed as a willingness to attend mediation will have been demonstrated by one party, if not the other. If mediation is deemed suitable then the process will start formally. Most mediators will charge a fixed fee for completing the MAIM and this is payable on the day of the appointment in equal shares.

In short…

The government is committed to mediation as a way of resolving family disputes. It is cost effective and should produce a better outcome. The concurrent reduction in legal aid has driven many divorcing couples to represent themselves in court and the rise in litigants-in-person has contributed greatly to the cost and time involved in court proceedings. If couples are willing to approach their split constructively, then mediation can provide a less confrontational and cheaper way of resolving their differences and there is evidence that this is a more constructive route to take when children are involved. However, it does rely on the commitment of both parties if it is to work. Nonetheless, mediation is not the only way of avoiding court proceedings. Solicitors can provide access to collaborative law as another, albeit relatively new, way of negotiating an agreement without the need to attend court. If you would like help in mediation or advice on any of the issues referred to above our family law team would be delighted to help.

About the author

Justin Creed

Head of Family Law

Justin specialises in advising clients going through the personal difficulties of separation in terms of the financial issues and arrangements for children.

Justin Creed

Justin specialises in advising clients going through the personal difficulties of separation in terms of the financial issues and arrangements for children.

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