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CLIENT GUIDE TO MEDIATION
An adversarial court process is not always best suited to the resolution of family disputes.
When a relationship breaks down, there will inevitably be issues to deal with, such as the division of assets and the arrangements for children. The law has recognised that such matters are often best resolved through discussion and negotiation rather than by the court..
As a result, anyone who wishes to make an application to the court for an order in "Relevant Family Proceedings, that is not by agreement, must follow the Pre-action Protocol for Mediation Information and Assessment.
Relevant Family Proceedings
The Protocol applies to all private law applications concerning children and proceedings for a financial remedy, except:
- Proceedings for an Enforcement Order, Compensation Order or any other proceedings for enforcement of an Order;
- Where emergency proceedings have been brought in relation to any child(ren) and are yet to be determined; and
- Proceedings for an Avoidance of Disposition Order or an Order preventing a disposition.
Mediation Information and Assessment Meeting (MIAM)
Before an application can be made to a court, the person wishing to apply (the "Applicant"), or his/her solicitor must first contact a Mediator to arrange a Mediation Information and Assessment Meeting (MIAM).
Details must be provided to the Mediator of the other parties contact details. They will then be contacted by the Mediator to discuss their willingness and availability to attend such a meeting.
If the parties are willing to attend a meeting together, then a joint MIAM can be held. If they are not, the Mediator can hold separate MIAMs.
The purpose of the MIAM is not only for the parties to learn about Mediation and alternative forms of dispute resolution, but also to assess whether such methods are suitable in their case.
Applicants who need not attend the MIAM
An Applicant is not required to attend a MIAM in any of the following circumstances:
- The Mediator is satisfied that Mediation is unsuitable because the other party is not willing to attend;
- The Mediator determines that the case is not suitable for a MIAM;
- Within the last 3 months the Mediator has previously determined the case is not suitable for a MIAM or Mediation;
- Within the last 12 months any party has made an allegation of domestic violence against the other party, that has resulted in a police investigation or the issue of civil proceedings;
- The dispute concerns financial issues and either the Applicant or the other party is bankrupt;
- The parties are in agreement;
- The whereabouts of the other party is unknown;
- The prospective application is for an order in ongoing relevant family proceedings that are already before the Court;
- The prospective application is to be made without notice;
- The prospective application is urgent – i.e. risk to the Applicant's life, liberty or safety at home, or any delay would cause a significant risk of harm to a child, miscarriage of justice, or unreasonable hardship;
- There is current social services involvement as a result of child protection concerns;
- A child would be a party to a prospective application;
- There is no Mediator available within a 15 mile radius to undertake the MIAM within 15 days of first contact
What is Mediation?
Mediation is a process where parties can discuss all issues regarding the breakdown of their relationship in the presence of an independent and impartial Mediator rather than negotiating through solicitors.
The process allows for couples to reach an agreement about their children and their finances to suit their individual circumstances. The Mediator does not have the authority to make decisions on the couple's behalf, however they can steer the couple towards making a decision and ensure the discussions remain focussed on the relevant issues.
Mediators are generally family trained solicitors, although in the capacity of a Mediator are unable to provide either party with legal advice. Each party can and should seek independent legal advice on any agreement reached in Mediation.
Costs of Mediation
Legal Aid is still available for Mediation, and the Mediator is able to assess your eligibility based on your means. Where Legal Aid is not available, the parties who attend the Mediation are responsible for any charges incurred, and these will have been explained by the Mediator before the process starts.
The cost and length of subsequent Mediation sessions will depend on the Mediator and the complexity of the issues to be discussed.
Mediation is not always successful and can be stopped at any time by either party.
Benefits of Mediation
Mediation may not suit everyone, but if couples find it useful, there can be many benefits, such as:
- Less hostility between the parties, as it is a much less adversarial setting
- Couples tend to feel happier that they have made their own decisions, rather than having a Court Order forced upon them
- Mediation can cost less than negotiating between solicitors, as the parties share the cost of a Mediator
- Communication is quicker and it is often faster to reach a decision face to face, rather than through negotiation at arms length
- Mediation discussions are legally privileged. This means they cannot be used in a Court without the permission of both parties. This allows parties to speak more freely.
What happens next?
If Mediation is successful, the mediator will prepare a summary of what is agreed in a Memorandum of Understanding. This is then sent to both parties solicitors. After receiving legal advice, if both parties are still happy with the proposals then the solicitors will convert the summary into a legally binding document and carry out any necessary implementation. It is important to have the agreement embodied into a legally binding document otherwise the agreement may be changed by either party at a later date.
Subsequent applications to Court
If the Applicant still wishes to apply to the Court, s/he must complete and file a Family Mediation Information and Assessment Form (FM1). This confirms the Applicant's attendance at Mediation, and the reasons why Mediation has not been successful. It must be completed by a Mediator.
At the first Court hearing, the Court will wish to know whether Mediation has been attended, and if not why not. The Court will always take into consideration any failure to comply with protocol and may refer the parties to Mediation before considering matters further.
This guide is intended as an outline only of the procedure. For further advice and information please contact any member of the Family Team at Andrew & Co.
To speak to a member of the Family team and make an appointment, please phone us on 01522 512123 (Lincoln) or 01636 673743 (Newark).