Is this really what we mean by ‘solicitor supported mediation’ ?

When introducing the National Family Mediation Week yesterday, Monday 18th January 2021, Mrs Justice Theis talked about, among other things, the need for family professionals to work together across the Family Justice system.

Angela Lake-Carroll referred to the MIAM (mediation information and assessment meeting) as now being 7 years old and the need for a greater understanding of its purpose and the purpose of mediation.

With these two references in mind and with the National Family Mediation week upon us I thought it a good time to raise the topic of how well family professionals are indeed working together in and around the mediation process and the extent to which many solicitors are encouraging their clients to consider mediation, from the outset.

Don’t get me wrong, this brief article is not about solicitor- bashing in any shape or form. I know many many great solicitors with whom I work and collaborate very well around the mediation process. Indeed, I was a family solicitor for 25 years.

However, unfortunately, I also know a few other family solicitors who have a very different attitude and approach towards mediation and it is this attitude which I wish to highlight in an attempt to show what ‘Good practice’ does not look like. My hope and belief is that their attitude towards the MIAM is not common.

I really believe that as family mediators and family solicitors, working for the ‘same clients’, we are missing a great opportunity to work much better together and it starts with the MIAM.

The email in italics below is a fictitious example of the kind of email I read a few weeks ago from a solicitor to their client (They sent it to me in the hope of encouraging me to ‘speed up’ the MIAM process). Sadly, this reflects the kind of advice I have sometimes seen and hear solicitors giving their clients in respect of mediation and the MIAM, over the last few years.

As a former family solicitor and Resolution mediation trainer of solicitors I have always been interested in solicitors’ willingness and capacity to work with mediators, around the mediation process, and what they actually say to their clients when they talk about mediation when they first see their clients (hopefully they do to talk to them about mediation in positive terms!).

I invite you to read the following email carefully, reflect on it and, if you wish, let me have your comments.

I have of course changed the wording of the email to disguise the origins but this does not change the meaning and clear aims of the email, which I think are plain to see.

“When you have the meeting with the mediator (MIAM), you need to get them to sign the MIAM certificate so that we can issue court proceedings.

For this to happen it will be important to highlight to the mediator that although you would have been open to mediation, you decided to use solicitors to organise voluntary financial disclosure and exchange proposals.

Please explain to the mediator that you are now 14 months on with little progress having been made and so you want it to go on a Court timetable as it needs to be resolved.”

Surely, mediation should be the ‘first port of call and not the last option’ (Mrs Justice Theis)!