When it comes to mediation, trying to make effective decisions about children with the other important adults in a their life can be difficult, even if you get on really well with those people. After all, these are big decisions and you might both have equally valid reasons to support your views. If those with whom you share parental responsibility are people you regularly find it challenging to communicate with the job instantly becomes rather more difficult!
Communication is king but it has to flow both ways and if the other person is closed to what you are trying to say, and you are closed to them, the likelihood is that everyone is talking but noone is listening and so there can be no agreement.
Communication is made harder when the conversation is drawn out over days by email or messaging and we lose the benefit of seeing our conversation partner’s facial expressions as we let our minds run wild making assumptions about their tone of speech.
Table of Contents (Click to open)
The manditory mediation requirement in relation to the family courts
It is no surprise that people often find they need help to reach a decision and of course, a great many people call on the courts to do that for them.
They relish the prospect of having that rigid and enforceable court order in their hand to wave in the face of their ‘opponent’.
The Family courts are funded by the taxpayer and in the face of a very challenging financial climate it has proven necessary for the strain on the public purse to be lessened.
We have seen this happening in many ways but one positive change has been to make exploration of pre-litigation mediation a mandatory requirement for applications for Child Arrangement and related orders.
The Courts know that communication between ex-partners can be difficult. They also know they are not needed to arbitrate over a great many of the minor issues between adults which really are not the impassable obstacles the parties perceive them to be.
If communication was effective the decision could probably be dealt with swiftly and cleanly and this is what mediation is intended to do, support effective communication by providing the skilled intervention of an independent third party to remove from the court’s horizon numerous minor issues.
You may well have heard of people talking about this, “You have to go to mediation before you can go to court, it’s mandatory”.
In actual fact the requirement is not to have attended mediation, this is a common fallacy, the requirement is only to have attended a special type of meeting called a Mediation Information and Assessment Meeting (MIAM).
“Before making a relevant family application, a person must attend a family mediation information and assessment meeting”
There is no legal obligation to attend mediation in advance of making an application to the court. Forcing people to do so would undermine one of the central principles of effective family mediation which requires that the parties are there voluntarily because they believe that mediation might help them reach an agreement.
Mediation is an entirely voluntary process. The law merely requires the parties to find out more about mediation so as to take a view as to whether or not mediation would be a suitable alternate means of resolving their dispute without the need to involve the court.
What is a Mediation Information and Assessment Meeting (MIAM)?
A Mediation Information and Assessment Meeting is both a requirement and an expectation for those wishing to make an application to the family court.
It has several purposes, designed to assess whether mediation might be a good way for people to get help in making important decisions about children without the need to involve the courts.
During the MIAM you will meet with a mediator who will explain to you what mediation is and talk to you about other forms of dispute resolution that you might like to think about.
It is a supportive environment intended to help you.
The mediator will want to understand what the nature of the dispute is and what you would like the outcome to be.
They will also want to pick out the issues which are common ground between you.
This is because they are looking to establish a possible plan for future mediation sessions if it is agreed that mediation is right for you.
The mediator may also signpost you towards other forms of support which might be helpful to you in reaching an agreement without needing to go to court.
How does mediation work?
The mediator will meet with you as well as the other adults involved in the dispute.
Typically mediators will require separate MIAMs to reduce conflict and help you feel at ease with the process but if it is not mentioned you are free to specifically request that you meet separately if that is what you would find most helpful.
The other parties will be contacted and invited to book their own MIAM within a specified timescale, usually 14 days.
Exemptions from mediation
Whilst your views are important the mediator will also be assessing you and the other parties for your suitability for mediation.
There are a number of things the mediator will be looking out for that might cause them to feel mediation is not appropriate irrelevant of your views and some of those reasons make you exempt from attending the MIAM itself. For example: –
- There is strong evidence that the relationship was violent or abusive;
- A Local Authority is worried about your child;
- You have attended a MIAM in the past 4 months;
- There are no mediators within the local area or there are but they are fully booked;
- Bankruptcy;
- Custody; or
- The mediator feels you may lack the mental capacity to engage in effective mediation.
The reasons why you would not have to attend a MIAM are very clear and we strongly encourage you to check our website if you think these might apply to you.
If you use an exemption to escape the mediation requirement you need to be sure of your reasons for doing so.
The risk is that if you try to go to court without having attended a MIAM or claim an exemption that the court doesn’t believe applies, the court will adjourn your case until you have attended one which can lead to a significant delay, which may impact your child.
You should be aware that you cannot just tick a box alleging domestic violence or saying you have child protection concerns, you need to be prepared to prove it, and there is a list of the sort of evidence that a court is expecting you to show them for each exemption.
If you haven’t attended a MIAM that is fine, but expect to be asked to present your reasons why and to distribute your evidence for the exemption you claimed at the first hearing if the court doubts you.
What happens if my ex refuses to attend their MIAM?
It is all very well that you toe the line and attend your MIAM but maybe your ex is less reasonable.
What happens if they refuse to attend a MIAM, or just don’t reply to your mediator’s request for them to arrange a MIAM?
Well, there are provisions to cover that too, because this is not an uncommon situation.
You contacted a mediator and provided your ex’s details and they were contacted and invited to book a MIAM of their own. They may have immediately done so, but equally, they may have:-
- Willfully and intentionally refused to engage;
- Failed to have engaged by the specified deadline (forgotten rather than ignored for example); or
- Booked a MIAM but failed to attend and couldn’t provide evidence giving a reasonable excuse for doing so (such as medical evidence).
In these scenarios, mediators have their own exemptions which they can apply if they consider that mediation will not be possible.
The mediator’s exemptions will be engaged and you will be offered certification of your application form which would allow you to proceed to court.
Depending on the mediator they may remind the other party several times but ultimately if they continue to refuse or forget for too long one of these exemptions will eventually bite and you will be given the mediator’s sign-off.
However, many people seem to believe that if the other party doesn’t engage with the MIAM process they will look upon badly in court.
If there is one email we get a lot of in relation to MIAMs it is this…
Good news! He/She refused to attend mediation! The judge will be on my side now!
No, no, no, no, no! The court will not care in the slightest!
These people totally misunderstand what a MIAM is for.
Firstly, mediation is entirely voluntary, the court is not really interested in how mediation or the MIAM went. The very fact you are in court makes it evident that it did not work and there is little point in the court spending its valuable time picking it apart to find out why.
It didn’t work so on to the next step.
Secondly, the MIAM and any subsequent mediation are covered by legal privilege, so anything discussed is private and confidential and that confidentiality includes protection from the court. If a court were to start attempting to unravel the mediation process it would undermine two of the very foundations upon which effective mediation stands – that it is voluntary and it is confidential!
If you are in court either the MIAM process failed or you proceeded to mediation sessions but couldn’t reach an agreement. The court doesn’t care which and it isn’t going to ask about it. The end result is the same.
At best it will ask if you attended a MIAM and if you claimed exemption will ask to see your evidence.
It could order attendance at a MIAM but if it didn’t work the first time there seems little point in delaying things so this is an unlikely scenario.
Your MIAM is an opportunity to get extra help in supporting your children and its successes or failures should not be used to score points against your ex, you won’t appear to be child-focused if you try to so leave this one alone.
You do not have to agree to mediation and there are no repercussions for you if you don’t, your only obligation is to attend the MIAM or provide evidence why you should not.
If you continue to mediation it is because you genuinely choose to do so because you think it will help.
You would normally attend pre-booked sessions with the other parent present, most commonly remotely via Xoom or Teams, although sessions can be carried out separately if that would be more helpful.
The mediator will remain impartial and won’t judge you or tell you who is right or wrong but you can expect them to sow seeds or challenge your views, beliefs and assumptions to explore where there might be common ground between you and the other parent and to narrow the issues down to those in dispute.
Mediation is private and confidential and you will both be asked to respect that by not using anything discussed in mediation against the other in court.
The mediator will not disclose information you have shared with anyone else, including the court, without your consent.
The only exception to this is in the scenario where you make a disclosure of serious harm to someone or provide information about a criminal offence.
Mediation sessions are likely to last between 45 minutes to 2 hours depending on the complexity of the issues or the working practices of the specific mediator.
If you are able to agree on an outcome following your mediation sessions your mediator will put this together for you in a mediation agreement or a ‘memorandum of understanding’.
It is important to understand that any agreement resulting from mediation is without any legal effect.
You can’t force the other person to stick to what you have agreed and you can’t do anything about it if they don’t.
Successful mediation will result in an outcome where your child wins and you can end the process there and go on with your life.
Alternatively, you can still go to court and use the agreement from mediation as the starting point for a court order by consent which will make your agreement enforceable.
Neither the MIAM nor any subsequent mediation sessions are free, there is a cost that needs to be covered by the parties.
The cost will vary depending upon the company you use, how many sessions you have and the complexity of the issues to resolve.
Most mediators will happily allow the costs for sessions to be shared equally between you and the other parties. There are also various schemes in place which cover the costs of mediation, for example, the government Mediation Voucher Scheme.
You can find mediators in your local area online by searching on the Family Mediation Council website.
If you are on a low income and are eligible you can cover the cost of mediation using legal aid.
A great many people find mediation a useful way to help them make decisions about children.
It avoids the stress of court and it gives you more control over your situation.
Our strong advice is to approach your MIAM positively.
If you do proceed to court you may end up with an order that neither you nor the other parent wants so it should always be a last resort.
You are always welcome to contact us for more information about the process.
