In a new series of blog posts we’re addressing the question “do I have to mediate”. It’s something we get asked a lot and, as usual, we want to widen the lens a bit on this binary question. The question is not just whether you are going to HAVE to mediate, but what the alternatives are. You can decide not to do something only to find out the other options aren’t good for you either. So the aim of this new series of blogs is to help explain the situation, encourage you to reflect on what is the right way forward for you, and then hopefully reach an informed conclusion (sort of like mediation – go figure ;-))
In this first blog we’re looking at what the law says as that’s the bit about whether you can be forced to mediate. But we’re also looking at why the law is the law as it helps to understand the background to these things so you can see the bigger picture. If you’re anything like us understanding why a rule is a rule is a lot more helpful than someone just shouting the rule at you.
Currently the family courts are struggling to keep up with the volume of people using them. LASPO (or more accurately The Legal Aid, Sentencing and Punishment of Offenders Act 2012) came into force in 2013 and this removed legal aid for the majority of people for family matters. Historically if you fulfilled the income and savings criteria (i.e you didn’t have savings or disposable income you could use to fund your legal fees) then legal aid would pay your legal costs and you would then pay it back if you recovered money. So if you were separating from an ex you could get legal aid to support you whilst you sorted out separating your assets, then when you got your share of the assets the legal aid was paid back, or it could be a charge against your house if you didn’t have the funds to immediately pay it back (if you didn’t recover any money – for example if your issue was about children – then you didn’t have to pay it back).
So after LASPO quite a few people ended up in the situation where they couldn’t afford to pay for lawyers, mediators or other professionals to assist them and court ended up being the cheapest option to resolve things because the only fee was a court fee which is paid when you start an application. This meant that many people started using the court system where previously lawyer assisted negotiation might have resolved the problems. Legal aid was still available for mediation but this message was not always getting through. To address this in the Children and Families Bill 2014 the government brought in a requirement that anyone applying to the court (save for some exemptions below) had to find out more about the different options open to them before commencing a court application by attending a Mediation Information and Assessment meeting (MIAMS). The idea was to divert those who didn’t really need to use the court system away from it and to other methods of dispute resolution. Part of a MIAMS is learning about all the different processes that exist to help couples who are separating to resolve all the issues that crop up. So each person can then make an informed decision about the right way forward for them.
The only circumstances in which you don’t have to attend a MIAMS are:
1. If there has been domestic violence (which you may need to evidence)
2. If there aren’t any mediators near you (which can be the case in some rural or far flung places in England and Wales); or
3. If there is a particular need for urgency (this would be warranted by the circumstances of the situation, not just because you want it resolved urgently).
So if you don’t satisfy those exemptions you would need to contact a mediator to arrange a MIAMS before commencing a court application about a family issue. The mediator will usually contact both parties in order to give them both chance to attend a MIAMS. The MIAMS meetings take place separately so you don’t need to be worried by this. It enables each party to hear more about mediation, and the other dispute resolution processes that are available to them, so they can then decide what is the right way forward for them. Giving both parties this information (separately) tends to assist the situation because you both then understand your options. Once you’ve each heard more about mediation in your initial meetings you can decide whether you think mediation is right for you. In addition to this the mediator is able to check whether mediation is a suitable process for you both to use. There aren’t many reasons why mediation won’t be suitable but the mediator needs to be sure that no one’s safety or wellbeing will be compromised by mediation going ahead.
If the mediator says it’s suitable then it’s your choice whether you move ahead with mediation, or use a different process to resolve issues. You can still decide to go to court if you want to. If you do then mediator completes a page in your application form (or a separate form) to confirm:
- Which parties have attended the MIAMS meetings (was it one or both).
- Whether mediation is suitable (if they were able to make this judgement call – it can be difficult if they have only met with one party).
- Whether anyone was unwilling to attend mediation.
- Whether mediation started and broke down.
If you go to court then it is open to the judge to explore why mediation didn’t go ahead with the parties. If only one party attends a MIAMS then mediation can’t go any further as it can only proceed if both parties engage in the process and attend an initial MIAMS meeting.
If you like the idea about mediation but are worried about being in the same room as your ex-partner then there are various safeguards that can be put in place to ease your anxiety and we will look, in next week’s blog, about making mediation safe.
If you’d like help and support managing your separation as constructively as possible then you can sign up to our free mailing list to get support into your inbox every fortnight. You can also join the online community, Soulful Separation Support, to talk to others going through separation and other professionals. It’s a safe and closed space so only members can see what’s posted.