We must protect the MIAM !- Mediation information and ASSESSMENT meeting
WHY ?
“I want this over and done with and ensure she does well”
“Can we not do this more quickly, it’s costing a fortune”.
“It has all gone out of control and we have got nowhere”.
“We didn’t like each other to start with. It is now 100 x worse”
As a full time family mediator and coach, these are just some of the things I hear every day from my separating couple clients, and have heard for many years as a former family solicitor and collaborative practitioner.
Most recently, I assessed a couple for mediation suitability.
They had already spent over £20,000 each, have just managed to exchange Form Es (Financial Disclosure Forms) and were about to launch into a long and drawn out process of exchanging ‘questionnaires and replies’.
They were both quite simply ‘on their knees’, exhausted in every respect, by the process they were in. Neither had had any understanding that it was going to be be like this, when they started out, having in some way bypassed the MIAM process.
They were now both very motivated and open to exploring other approaches with me.
I am hearing of similar experiences every week. It need not been this way.
Our job is not to take the decision making power away from our clients. Quite the opposite. It is our role as family professionals to create the conditions and environment to support our clients to make the right choices and decisions for themselves and their families.
The MIAM plays a key role in this.
The MIAM
There are many reasons why it is absolutely essential to keep the mediation information and assessment meeting alive, ensuring that they are being delivered properly by a trained and experienced mediators, practised and experienced in thoroughly assessing people and their situations for the suitability of mediation and other out-of-court processes.
It has been suggested, indeed proposed, by some people and organisations that a simple information and advice (dropping the word ‘assessment’) meeting would be sufficient to assist and support separating couples to make the right decision about the process or processes to help them resolve financial and child -related matters.
It would not !
5 Key Drivers
Every week my separating clients are telling me that they want and need a separation process that:
- is as clear and straightforward, as possible
- that will help them to achieves fair outcomes
- that will keep them in the driving seat when it comes to the important decisions about their families, but need to be made
- which will take weeks and months rather than years to complete and,
- does not cost them ‘an arm and a leg’, a smaller house, less money to support their children and so on, because they spend so much of their valuable resources on legal fees.
I accept that there are a number of out-of-court processes, other than mediation, which might assist separating couples to achieve these desired outcomes but only one, IF couples are supported sufficiently well, which will help the couple achieve these desired outcomes, in the most efficient, effective and comprehensive way.
That is the mediation, or ‘supported’ mediation process, in which each person is properly assessed, prepared and supported by the right professional, at the right time, working together, around the mediation process, keeping the separating couple at the centre of the decision making process , all working to the central purpose of helping them to reach their own financial and co-parenting separation solutions, honouring the key principles and values of autonomy and self determination, in their purest way.
The Challenge
More and more often I am hearing from professionals, who are not experienced or even trained mediators, who have listened to ‘one side of the story’, saying and advising their client that the mediation process is not suitable for them , in their situation.
These clients then come to me for a MIAM, already ‘primed’ to think negatively about mediation, rather than coming to the MIAM with an open and curious mindset, ready to explore the mediation opportunity.
In some cases, these professionals may of course be correct about the suitability of mediation although, in many others, I have found that they are not, after I have carried out an in-depth assessment and analysis of my clients capacity and competence for mediation, exploring in detail the patterns and dynamics within their relationship, and examining their understanding of mediation.
In some of these cases, where mediation is clearly suitable, the couple decide to give mediation a go and are successful but this is not happening nearly enough in my view and the MIAM is being blamed.
My job as a family mediator is to ensure and enable my clients to make a fully informed decision about mediation, and other processes that might be suitable in their situation, and then to ensure that they are properly prepared and supported throughout the process, if they choose to mediate with me.
Mediation- ‘Supported’
Indeed, I would say that mediation, ‘in one form or another’, with adequate preparation and support, would very adequately help many separating couples, who currently choose not to mediate, to achieve the 5 key priorities stated above.
When I refer to mediation, ‘in one form or another’ I am of course referring to the intrinsic flexibility of the process and the possibility of designing it around the particular needs (Practical, relational, communication, psychological) of the couple I am working with.
For example, the couple might be online, working from different online spaces, International or in this country, in different rooms, with their solicitors or some other supporting expert present, using mediation to resolve everything or one specific issue which might unlock the whole case.
As a mediator, I often work online with them and with other experts, either during the sessions or in between sessions, ensuring that the couple feel supported at every stage of the process and are kept at the centre of the process, supported to make fully informed decisions and achieve the things of most importance to them both (5 key aspects above)
The key and starting point to all this is a skilled and thorough assessment and analysis of the couples commitment, capacity and competence for the mediation process and what it will require of each of them and both of them, carried out by a professional who is properly trained, practised in skilled at doing this, in a MIAM.
Nowadays, more often than not one or more of my clients are working with a Coach, behind the scenes, to help them make the most of the mediation process and maximising the chances of successful mediated outcomes.
Advice rather than Assessment?
The MIAM will of course require the couple to be provided with clear information about the process options available to them, as well as relevant information about the law.
However, as a former family solicitor and Collaborative practitioner, I often found myself having to be very cautious with the advice I provided at an early stage and how I delivered it, when I did not have all the facts, had only listened to one side of the story and risked polarising mindsets and making an already difficult situation worse, whilst recognising of course the clients need for reassurance and confidence in me and that I was going to support them.
Indeed, I often found that early specific advice was not helpful.
I am not course suggesting that in some cases couples need early and urgent advice and assistance from a solicitor where there are, for example, safety issues to attend to or urgent court applications relating to issues of abuse or manipulation of the finances for example but, from my experience, these are not the ‘norm’.
Solicitors can of course play an incredibly important and valuable role in supporting couples, who have chosen to use mediation, to separate in a way that helps them achieve the things we have talked about.
Indeed, I would say that more often than not, supportive advice and assistance, delivered in the right way, gives may clients using mediation, the added confidence and ability to work more effectively together with the mediator, making decisions together.
Solicitors, like coaches and other experts can be crucial to helping the couple in mediation. It is never the case of ‘one size fits all’, hence the need for an early and thorough MIAM to decide on the best approach and process(es) to meet the various needs of the clients.
The case for the MIAM
For these reasons, based on my experience of having carried out hundreds if not thousands of ‘first meetings’ with separating clients, as a family solicitor, mediator, collaborative practitioner and coach, I believe that the best gateway meeting for couples is indeed the MIAM, with an emphasis on the A for assessment.
In my view, it is the assessment aspect of MIAM that is being somewhat overlooked in the current debate about whether this meeting or some other type of gateway meeting is fit for purpose.
This said, I also believe that what is required, to underpin an effective mediation information and assessment meeting, is better training for mediators and greater accountability for carrying out a proper and thorough MIAM, which includes a proper and thorough skilled assessment, exploring in depth with each person, their understanding and their capacity and competence for mediation, as well as the nature, dynamic and patterns underpinning their relationship and communication, among many other things.
I also believe that every mediator should be held accountable, in some way, for a clear explanation of the broad variety of out-of-court processes, or combination of processes, available to their clients, helping them make ‘fully informed’ decisions, hopefully together, about the best process or processes for them.
What I do not believe is that the MIAM should be replaced by an information and advice meeting, removing the need for a proper skilled assessment by a properly trained professional to carryout this assessment, who must of course also, provide early information and, in some cases, recommend early advice, where this is important.
An accredited, experienced, skilled and committed mediator is trained and equipped to deliver all this.
They are the best professional for this particular job
Summary
Anecdotally, based on 25 years of mediating experience, I believe that mediation, in one form or another, is suitable for around 60% to 70% of separating couples.
Looking at the huge numbers still using the court system, far too many of these couples are missing out on the opportunity of using the mediation process to achieve the things most couples say that they want (5 Key Drivers), because of inadequate MIAM assessments.
This is not the fault of the MIAM itself so please don’t take it out on the MIAM and certainly do not do the thing I fear most, remove the requirement for a proper assessment and analysis of suitability for mediation by someone trained for the purpose.
We are all (Mediators, Coaches, Solicitors, Judiciary etc) accountable for encouraging and promoting attendance at a MIAM, ensuring that our clients come to the meeting with an open, curious mind, as early as possible, trying to avoid the kind of scenario I set out at the beginning of this article.
On the question of promoting mediation, interestingly, I am still finding that many couples are not aware that the Government (We, the tax payers) are giving them £500 towards their mediation costs (non means tested) where they use mediation to sort out child arrangements. Are we all (Family professionals, court staff, CAFCASS etc) telling them this ! Perhaps this is the subject for another article.
Also, whilst focusing on the MIAM, I would support making it compulsory for client B, as I refer to them, to attend a MIAM, as well as client A, so that they can both be properly and skilfully assessed for Mediation (and other processes) and given the opportunity of achieving the 5 key things most separating couples have told me and continue to tell me are really important to them. Perhaps, again this is a subject for a separate article.
On a final note, I should make the point that I have no difficulty supporting the renaming the mediation information and assessment meeting (MIAM), perhaps calling it an information and assessment meeting (IAM).
It is the dropping of the word assessment and the need to properly assess separating couples for mediation which I have difficulty with, for the reasons I hope this article makes clear.
This is why we need to protect the MIAM.
John E Hind LLB. FMCA.CMC reg
Founder- Compass Resolution Ltd
Author- The Divorce Manual