The Private Law Working Group- MIAMs (mediation information and assessment meetings)

In this article, which solely represents my personal views, I seek to rebut assertions, made in paragraphs 58 of the Private Law Working Group second report, that the current MIAM system is not working, as intended.

This assumes, in my view, that the main intention of the MIAM system, as it is referred to, is to ensure that the vast majority of family law applicants attend a meeting with an accredited mediator for the purposes of assessing for the suitability of mediation, BEFORE they make their court application.

I refer you to paragraph 58 of the private law working group and will seek to deal with each paragraph in the same order as it arises, as follows;

a. There are practical difficulties in booking a MIAM-I have never experienced any difficulty booking a MIAM. Indeed, I follow a very simple two-step process with solicitor referrers. With their client’s permission, they passed me their client’s name, mobile and email so that I can arrange the MIAM with them. I make contact with their client, offering some dates and times for the meeting. The meeting goes ahead. The proposition that an online booking system be hosted by the FMC is, to my mind, over complicating what can be a very simple process.

b.Families need Fathers assert that in the experience of their users, MIAMs simply don’t work and represent a further barrier to accessing justice parents and grandparents, denied a relationship with their children.-Surely the answer to this is that if a mediator assesses mediation as suitable, following a MIAM, ways need to be found to ensure that the parent assessed feels and is made accountable for the choice they then make about whether to apply to court or not.

Currently, the MIAM certificate does not require the mediator to specify which reason is chosen for mediation being unsuitable.

Perhaps one way round this is to specify the reason such as, the applicant does not wish to start or continue mediation and/or the respondent does not wish to attend a MIAM. They must then answer to the judge, if court proceedings are issued.

c.MIAMs are too readily seen as obstacles, not opportunities-By whom? I do not understand this criticism. I can only emphasise that from my perspective, as an accredited mediator,I carry out hundreds of my MIAMs each year, during which I help each client perceive these meetings and the mediation process as an opportunity (gift to each other and their children) of self-determination, an opportunity to craft an outcome which primarily meets the children’s needs but also the needs of each parent and an opportunity to ensure that the children’s rights to a quality relationship with both parent becomes the key focus and aim of all future child arrangements and communication between the parents. As I say, I do not understand what is meant by seeing MIAMs as obstacles, rather than opportunities.

d.Is a MIAM an ‘exorbitantly costly tick box exercise, as asserted by one litigant in person’-I do not deny that this may have been their experience but I rather suspect, knowing and understanding the quality service received from many of my colleague mediators, this represents the exception not the rule. Like most professional services, there will of course be professionals out there paying the MIAM lip service.

e.Apparently, it was reported in family law June volume 49 that it has become common practice to treat MIAMs as a tick box exercise, particularly by lawyer mediators– Again, I can only conclude that whoever wrote this article has an experience which I do not share. As a lawyer/mediator, most of my MIAMs take between 45 mins and 1 hour 30 minutes and serve a variety of functions although the primary function, from my perspective, is to assess whether, in the circumstances described to me, I believe that I might be able to create a safe space and assist the separated couple to communicate well enough so that they can make joint decisions and reach agreements together, keeping them out of court. I believe that this is a very skilled service and process and one best left to accredited mediators skilled in the area of assessing willingness and capacity for mediation.

f.Does the MIAM system need to be scrapped or does there need to be a total overhaul-my view is that the system itself is sound. More training of those carrying out the meetings and those required to enforce the requirement for the meetings (solicitors, court staff etc) might be required and, perhaps most important, a mechanism for holding those clients accountable should they choose to go to court when the mediator has assessed them and their circumstances as suitable. So, no scrapping or overhauling is required, simply an improvement to the current system.

g.Would the SPIP be a more suitable gateway to the court than a MIAM on the basis that the SPIP is mandated-. On the question of mandation, if this is indeed the answer, why cannot attendance at a MIAM be mandated? A SPIP and MIAMs fulfil different aims although, to my mind, there is significant overlap if the client parents go on to mediate.

I often spend a significant portion of my time with the parents helping them to improve their communication because unless their communication is ‘GOOD ENOUGH’ (fit for the purpose of reaching joint decisions as co-parents) they will be unable to reach joint decisions together and plan their child arrangements. As importantly as this, and one of the keys to the health and well-being of their children, is the quality of their parent’s communication and absence of conflict.

If at least one of my client parents is eligible for legal aid they both become entitled to a free MIAM and one free joint mediation session. Indeed, the person who qualifies for legal aid also becomes entitled to 2 more free joint mediation sessions during which mediators can focus on helping their clients to improve communication so that they can reach some robust child arrangements together.

Parents then carry these communication lessons, skills and strategies with them into their future to build their parenting alliance. I believe that this is also a focus of the PAP, SPIP

h.By the time of the MIAM people are often determined to go to court and difficult to persuade otherwise– I agree. Clients quite often come to me having spent months exchanging letters, financial statements and documents, between solicitors as their frustration and anger with each other builds.

The result is that when I meet with them, they quite often find it impossible to envisage what I might be able to do, as a mediator and skilled conflict management coach, to help them and their former partner make decisions for themselves, when their mistrust and suspicion of each other has been fueled to even greater heights.

Far too often they tell me that their solicitor now wants to go to court because their former partner is refusing to answer another more question put to them about their financial statement by which stage thousands of pounds of legal costs have spent and the barriers to mediation built to insurmountable levels.

The answer, in my mind, is to look at mechanisms to encourage (if not compel) separating couples, early in the separation process, to attend a meeting with a mediator who will discuss how best to contain the conflict that exists, helping the couple to find ways of working together even when communication, and trust in each other are at a low ebb.

Could it perhaps be a prerequisite upon issuing a divorce petition? There must be other ways and mechanisms of encouraging (judicially encouraging) separating couples to seek information and support for mediators and professionals managing SPIPs and PAPs, for example.

i.The MIAM is unsuitable for the majority of parents involved in court proceedings because, apparently, 60% make allegations of domestic abuse-I just wonder how many of those allegations are proven or, indeed, get off the ground. That is not, of course, to undervalue or undermine the opportunity for separating parents to make allegations of domestic abuse but they must, of course, be held accountable for these allegations and assertions.

Also, domestic abuse does not immediately make mediation unsuitable. Indeed, over the last 22 years of mediating, I have had many parents who, on the one hand make allegations of domestic abuse whilst on the other are keen to avoid court, if at all possible, and find some way of reaching child arrangements with their former partner which can work for the separated family as a whole.

j.Legal aid would be better spent on targeted early legal help or the introduction of fixed the legal advice from solicitors– As a solicitor mediator I find myself being able to reassure many of my mediation clients, who do not yet have a solicitor, with legal information I am able to give them, as opposed to advice, bearing in mind that, when I was a solicitor, the advice I was able to give my clients during their first meetings with me was very minimal until I was able to gather together the whole picture and balanced view, as more and more data came in.

As a mediator, I am of course able to speak to both partners or spouses, thereby able to quickly gather a more balanced view of the situation, getting a sense of the conflicting narratives and whether I can help with providing the legal information (about legal principles) to both of them, at the same time, being careful not to polarise their mindsets and approaches, at an early stage.

There are, of course, times when early advice and support is required especially, for example where an occupation order may be required or an injunction, for example, to prevent the dissipation of assets but, from experience, this is not required in the vast number of cases I deal with, as a mediator.

I would prefer it if clients came to me, the mediator, early on to begin the process of having conversations together, creating a ‘self-determinative container’ within which to work, before seeking ,advice and assistance from a suitably qualified solicitor, in support of the mediation process unless the circumstances above apply.

In paragraphs 59, 60 and 61 the Private Law Working group report goes on to reference recommendations from a large number of consultees, to revitalise MIAMs, support more rigorous enforcement of MIAMi’s and better training for the judiciary, all of which I wholeheartedly endorse.

Finally, let me respond to the comment received from some professionals that the MIAM should perhaps become an ‘IAM’ and conducted by family lawyers, collaborative lawyers and family arbitrators.-My view is that it should not be beyond an accredited mediator to clearly and accurately explain the collaborative and arbitration processes, as well as the mediation process.

Also, from my experience and in my view, an assessment of the persons capacity to actively, positively and constructively engage in a collaborative solution focused process with their former partner, whether this is in a lawyer -led collaborative process or in mediation, is best carried out by professional who spends most of the time enabling, empowering and motivating separated couples to communicate more effectively so that they can go on to make joint decisions and construct good robust self-determinative outcomes.