All change in family mediation?

If you work in family law, or follow it closely as a result of going through a separation, or having experienced a separation, then it can’t have escaped your notice that there has been much talk about a government consultation on mediation. The driving force behind the consultation is to encourage more people to access early help via mediation following a separation so that they are hopefully diverted away from the court system which is currently struggling with staff and judge shortages which has seen an increase in delays and other difficulties. It also seeks to introduce other measures to ensure those going through a separation can access the support they need through parenting courses and local hubs, as well as increasing the support and protections for victims of domestic abuse. It is the parts relating to mediation that I am focusing on in this blog.

The consultation will essentially look at two things:

1. Should parties be told that they have to try joint mediation meetings; and
2. Should the current voucher scheme be made permanent and should it be extended to include discussions in mediation around financial issues.

I’d like to look at these two parts in more detail and pull out some strands.

The current system

For some years now there has been a requirement for anyone commencing a court application about a family issue (be that children or finance related) to attend a Mediation Information and Assessment meeting (MIAMS) with a mediator. These meetings take place separately and so there was no requirement that the two people involved had to be in the same room, or participate in a joint mediation meeting. There are exceptions to this rule where there has been domestic abuse, where there is a particular need for urgency, or where there is not a mediator sufficiently close to the Applicant’s home (this is still the case for some people in rural locations).

The MIAMS meetings enabled people to talk about their situation with a mediator and to understand the options open to them for ways of resolving the issues. It also enables the mediator to signpost them to support that might be useful. These meetings are useful for giving the person wanting to make an application the chance to offload and talk about what had happened to them. This might sound strange but as a mediator I have encountered many people in MIAMS meetings who tell me they are talking about what happened for the first time. It is often cathartic and emotional.

It also enables people to understand the different processes that exist to help those who are separating to resolve all the issues that they see. Many people believe that it’s either mediation or court and those are there only options. It’s important to note that many people attending MIAMS meetings have not had any legal advice or information from any other sources. I feel I should flag that even some of those who have had legal advice do not have all the options explained to them.

Signposting support is also really important. Many people won’t hear about sources of support from anywhere else so that MIAMS meeting represents a chance to flag help and to outline services, books, websites and other sources that might be of use. I’ve spoken to many people who feel anxious and depressed but had not thought about talking to their doctor. Others did not know that they might be eligible for benefits. Others knew nothing about the process of separation and welcomed the chance to get some information on processes and to get details of some books and websites that give further information.

Despite their initial misgivings many people leave MIAMS meetings wanting to mediate and being sad that their ex-partner would not consider it despite being contacted by the mediator. There has been talk for some time about whether requiring the second party to the application to attend a MIAMS would be helpful so that they can have the same chance to offload, hear the same information and receive the same signposting (although it might be to different sources depending on their needs). Personally I’ve always thought this would be a good step in helping both parties to understand the pros and cons of the avenues open to them. As I’m fond of saying in mediation, “you can only make informed choices with information” and without all the information no one can make properly informed choices. Mediators providing this information ensures that it is provided neutrally without steer on what the best option might be for those involved. We simply provide information about processes and about potential pros and cons, and often question participants about their objectives so they can help to understand them themselves.

The fundamental principles of mediation

There are some governing principles that historically have always applied to mediation and which are integral parts of the mediation process. These are:

• It’s voluntary
• It’s confidential
• The mediator is impartial in the mediation and does not take sides.
• A mediator must disclose conflicts of interest, and they should not have any vested interest in the outcome of the mediation.
• All discussions in mediation are legally privileged and without prejudice (save for the provision of financial or other factual information)
• The mediator should, at all times, have regard for the welfare of any children involved.

I do not believe that the current system interferes with this and nor would requiring the other person involved to attend a MIAMS meeting. However, the government’s consultation is regarding introducing a requirement that separating couples make a reasonable attempt to mediate. This, for the first time, would formally require people to attend joint mediation meeting. There will be exceptions for victims of domestic abuse and I’ve dealt with this separately below. I feel I should also stress that were this to be case the mediator MUST retain the ability to put safeguards in place where they consider them necessary – such as mediator with the parties in separate rooms (either online or physically in the same building) or to use an adapted mediation process that provides additional support by way of lawyers, divorce coaches, or other professionals.

I believe that specifically requiring people to attend joint mediation meetings and to actually try the mediation process raises three issues:

1. If people are required to attend mediation this removes the voluntary nature of mediation and takes away one of the fundamental principles that has always been a part of mediation. We all know as humans that if we are forced to do things or attend things we don’t want to we rarely embrace them with an open attitude. We are not there to see what happens, or what benefits we might be able to take advantage of; we are there to endure and usually with bad grace because we have to be. I’m generalising of course but I do have a concern that this will not place people in the right place to benefit from attending mediation (and there are many benefits).
2. Who decides if the two people involved have made a sufficiently reasonable attempt to mediate? I think the assumption is that this is a call for the judge but on what evidence is this based? As I’ve outlined above mediation is both confidential and legally privileged. It would be an untenable situation, for me and I think most mediators, for mediators to be called to court to either give evidence about what happened in the mediation process, or to be asked to make a judgement call on whether the clients the mediator had seen had been reasonable in their attempts to mediate. Such an assertion would also breach the principle of mediators being impartial. At this stage I would question how many of the fundamental principles of mediation might be left!
3. As mediators we are driven to help people in need. Our desire is to help people in difficult situations to navigate this often challenging path, and to have conversations they are unable to have between themselves. It is to help parents to support their children and to make decisions that are in their best interests. It is also to help them map out a future post-separation and to steadily make arrangements that create a map for this. To see those in mediation who are not there willingly, or with the intention that they have decided mediation is the right way forward for them, may well require a very different skillset and approach. It may, fundamentally, require all mediators to have additional training. This will require time, money and considerable co-ordination. It also may change the basic nature of mediation work. Would all mediators remain in the profession? Would there then be sufficient mediators to do this work? These are questions that must be considered before any rule changes were made.

As you’ve probably gathered from the above I have concerns about making any joint mediation meetings compulsory – even with safeguards. I believe it changes mediation into something else and taking away it’s fundamental nature makes me question whether it would still be what we know as mediation.

Domestic Abuse

I’ve seen a lot of talk about domestic abuse from people in discussions about the consultation and rightly so. I want to stress that currently victims of abuse are exempt from the current requirement to attend a MIAMS. Anecdotally I’m not sure that this is understand by everyone as I still get referrals for MIAMS from lawyers where the client has been a victim of physical violence and I have seen courts refer out for MIAMS in such situations too. Mediators screen all people that they see in MIAMS meetings for their suitability to attend mediation. They are trained to be alert to physical abuse, emotional abuse, financial abuse, and controlling behaviours. This is a fundamental part of the mediation process and these exemptions should continue to apply in any changes that are made to mediation. The government says this in the document on the consultation:

“We have reviewed the current MIAM exemptions as well as international examples of how other countries have developed policies to make pre-court mediation compulsory. A common feature of these systems and our current MIAM requirement, is that cases where domestic abuse65 concerns are identified, or are otherwise not suitable, are identified early and not required to proceed with mediation
before a court application can be made.

We recognise that mediation is not suitable for these and other circumstances (such as
certain urgent and/or child protection circumstances as specified in current MIAM
exemptions). We want to ensure there are appropriate exemptions to a mediation
requirement in order to achieve a balance between access to court and maximising
opportunities for agreements to be reached privately. In this consultation we are seeking
views on appropriate exemptions, but we will also take into account the views of the
Family Procedure Rule Committee following its review of the MIAM exemptions list.”

The consultation specifically highlights the need to help victims of domestic abuse and to prevent them being re-traumatised by the way issues are resolved. My hope is that the need for robust screening and to exempt victims of abuse from these requirements will continue and it will be the mediator’s judgement as to whether mediation is suitable or not. To my mind this is absolutely essential.

This goes hand in hand with ensuring that mediators are properly trained and that they are screening appropriately and comprehensively. The changes to MIAMS requirements which were introduced on 1st October 2022 already highlight this and there are now requirements that mediators undertake training on domestic abuse and screening. It also ensures a uniform standards for MIAMS meetings so that there is a clear quality of service and standardisation of this as a required meeting by statute. As an aside the government recognises in its consultation that the requirements to attend a MIAMS meeting has not worked as intended and this is a welcome addressing of a long held frustration of mediators, lawyers and other professionals alike.

The government voucher scheme

Separated parents who want to access family mediation to talk about issues relating to their children can get up to £500 (per couple) towards their mediation costs. This typically funds at least a meeting and can leave a balance as a deduction from a second meeting. It has been helpful in encouraging parents to be open and willing to try mediation without worrying that their limited budget might be used up. This has also enabled greater statistics to be compiled relating to mediation outcomes which has shown just how beneficial mediation has been for those using it. It has certainly diverted many people away from the court process and enabled them to find a resolution to some or all issues much more quickly and in a calmer way.

The funding for this has now been extended on a couple of occasions and the consultation looks at whether this should be made permanent. It will also look at whether it should be extended so that those wishing to talk about financial issues can also access it. Currently legal aid is available for family mediation (in a way that it isn’t for accessing legal advice as this is limited to certain situations such as for victims of abuse) for those that qualify. The voucher funding is available for everyone regardless of their means.

As a mediator who has offered the voucher since the outset I have certainly seen the benefits of it first hand with those thinking they would have to go to court giving mediation a try in a way they might not have done had they not been able to have a first meeting completely funded. In most cases this has meant that the parents have not ended up going to court.

I would certainly be in favour of seeing this made permanent. I think if the government does make mediation compulsory it has to be funded as otherwise you may force people to get into debt. The voucher does not currently fund a MIAMS so this is something people have to fund if they are not eligible for legal aid (or choose to use a mediator without a legal aid contract). I would also be in favour of it being extended to cover discussions on financial issues for similar reasons. Too often parties cannot access assets they have to find money to fund mediation and this puts a financial constraint and a huge burden on them. Being able to access funding to part fund mediation costs would I think encourage more people to try mediation, and reduce the financial burden. This, to me, is a better option than making mediation compulsory. It is, if you will, carrot in place of stick.

The positives

You will gather from the above that there are concerns about what this might mean but I also wanted to highlight the many positives that I see that potentially stem from this consultation:

• Greater recognition of the impact of domestic abuse on families is long overdue and recognising the protection that they need is extremely important. Freeing up court time by diverting those that don’t need it so those that do need the protection can access it in a less time constrained and more supportive way will be a significant and much needed shift in our family justice system
• Ensuring that separating couples have access to information about all the options open to them at an early stage can only be a good thing. This enables them to properly understand their options and to make decisions about the right way forward accordingly.
• Making it easier to access information about support through local hubs is also a beneficial change. Those googling separation related issues are met with a huge number of different pages on an online search and they have no way of going through them all to determine what is helpful. Having support contained in hubs that are signposted from professionals and potentially even the government website is a positive step. As I’m also fond of saying to clients, no one teaches you about separation so when it happens why on earth would you have any clue what to do?
• I’m a mediator so of course I’m evangelical about the benefits of mediation. I don’t think you’d really expect me to be any other way, would you? That doesn’t mean I believe it’s the right process for everyone. It isn’t if there is a power imbalance that can’t be overcome through safeguards, and it certainly isn’t if the thought of even participating in a meeting with your ex partner in a separate space terrifies you. There are also situations where people may require more progress or recovery in their grief before they can properly take advantage of the mediation process. What I do want to stress is that these are all things that mediators look at in MIAMS meetings so you don’t need to worry about making an initial enquiry of a mediator, or referring a client you’re working with to mediation.
• Too many people end up in court because they don’t know about other options. They don’t need to be there, and it doesn’t help them to fundamentally improve their communication so that they are able to tackle issues themselves going forwards. The problems in the court process are dire: long waits for hearings, long awaited final hearings being cancelled the afternoon before because a judge is not available, lost paperwork, and limited ability to talk to a human and find answers. Diverting those that can be better served in other dispute resolution processes from the court system has to then improve it for those that need it. Such changes will also improve the stress levels of lawyers representing clients in court and those working within the court system. Some people may say this is irrelevant but ask yourself whether you want to be dealing with people who are on the verge of burnout or those who genuinely enjoy their jobs? Most family lawyers I know genuinely want to help their clients and are distressed by the court problems hampering their abilities to provide that support. They spend ever more time trying to find alternatives to help clients achieve a final resolution without using the overburdened court system.

A last point here, I’ve not yet written my response to the consultation. I have a document where I’m collating points I want to flag and things I want to make sure I cover. I want my response to be as comprehensive and constructive as possible. I’ve found conversations with other professionals and those who are going through a separation, or who have been through a separation, to be really helpful in helping me to ensure that this is what I’m putting together. In a recent group supervision meeting we talked about the consultation and I’m sure I gained as much from it as my consultees. If you are in any way affected or interested in this consultation then PLEASE respond. You have until 15th June and there’s a link to it at the top of this page. I really believe it will be the better for hearing as many voices as possible, covering as many different points and angles as we can. This will help (hopefully!) the government to make the changes that will be the most useful, supportive and effective. That essentially is what I believe we all want!

Louisa Whitney is the founder of LKW Family Mediation and an accredited and child inclusive mediator and a PPC.

Other blogs you may find useful:

Preparing for family mediation

Separation Guidance

You may also find our free resources helpful.

If you’re a professional working with separating individuals of couples then you may be interested in our forthcoming training events program.