Over the course of this year, since April 2013, a number of my family solicitor colleagues have drawn my attention to the fact that it has become fairly common practice in many courts for solicitors not to refer their clients to a mediation information and assessment meeting (MIAM) and then to indicate on the children court application form that mediation is not applicable or indeed unsuitable, as justification for not filing a form FM1.

Why are they doing this and are they relying on the hard pressed court staff to let them get away with it. If so, it seems to be working!! Is this not an abuse of the intended purpose and process of attending a MIAM?

My view is that, because of this, many hundreds of children cases are ending up in court when they need not do so. One just has to look at the hundreds of children court applications last year. This is a tragedy for thousands of children every year and of course, their parents, most of whom need help and support to parent their children together and not a court to tell them how to do so.

I just wonder who is assessing the clients and their circumstances as unsuitable for mediation in the first instance? Surely, it should be the expert in mediation, the mediator, and not the solicitor, just as it is equally appropriate for mediators to recommend  their clients to  a solicitor for legal advice and not to advise on the law themselves, because the solicitors are the experts on family law, not the mediators.

The mediator is trained and experienced in assessing, screening and preparing their clients to work in a mediation environment. I find it difficult to understand how a non-mediator believes that they are qualified and competent to assess whether a person is suitable for a process in which they have no first hand experience but clearly, in many cases, they do.

I recommend to most of my clients considering mediation to ‘ take it for a drive’ so that they can experience mediation and how the mediator works, first hand and then judge for themselves whether it is working and likely to work for them. This only applies of course to those clients not excluded for child protection, mental health or domestic abuse reasons.

I would say the same to those solicitors who are failing to recommend their clients to attend  mediation information and assessment meetings. Refer them to a mediator qualified to assess whether they are suitable for mediation who will give them the best opportunity of understanding mediation and whether it is likely to work for them and their partner.

The other point of course is that, it is almost impossible to judge whether mediation is suitable in all the circumstances until both clients have been seen and all the differences and dynamics explored. This can only be done by a neutral and impartial mediator.

If solicitors and mediators start confusing  roles and expertise we will not do our clients any favours and, furthermore risk undermining each other’s professions and the system and processes set up to protect our client’s and their children’s best interests.