MIAMs One Year On
On the 6 April 2011, in family cases, a new procedure was instigated requiring all potential applicants to consider the possibility of mediation to resolve disputes in connection with the care arrangements for their children or financial aspects of their separation as an alternative to beginning court proceedings. The pre-action protocol was brought in under the banner of publicity stating that it would be the greatest encouragement for separating couples to resolve their issues directly and without the need for intervention by the courts.
At first there was an immediate and sharp increase in the number of couples being referred by their solicitors for mediation services and the take up of mediation thereafter increased proportionately. Since that time however there has been a decline in the number of couples being referred for their initial MIAMs appointment. It was initially expected that the court would not allow applications in connection with children and finances to be pursued if the parties had not attempted mediation. However recent surveys have shown that the flaw in the system seems to be that the referral for mediation is not compulsory but is simply an issue of best practice. Under the existing protocol Judges cannot make couples attend for mediation: solicitors do not have to follow the pre-action protocol and there seem to be no sanctions if mediation is simply bypassed. Practice across the country differs from Court to Court leading to inconsistency for couples who are desperate for some certainty as to "what happens next".
Court proceedings are commonly accepted by most people working within the family justice system to be expensive and inevitably increase the levels of acrimony between the separating couple. For most there is a commitment to reducing the distress of separation upon couples and their children and the government`s initiative is to encourage mediation as a way of enabling couples to resolve disputes in a more amicable and constructive fashion. It is now expected that following a review of the MIAMs procedures that as from April 2013 attendance at a meeting with a mediator will become compulsory and that proceedings will be barred until that meeting has taken place. There is movement from the government and most governing bodies to ensure that alternative dispute resolution is promoted and encouraged: progress is being made but it remains to be seen whether or not the take up for mediation will substantially increase in the coming year.
Rollits LLP have three family lawyers based in Hull and York undertaking all aspects of mediation work both privately and publicly funded. Please contact me or my colleagues Sheridan Ball or Alison Benson if you require any further advice or information.
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.