Family update

Since April 2014, and as mediation becomes more integrated into family
law, mediation information assessment meetings (MIAMs) became compulsory for applicants who want to make an application to court for children and financial matters.
There are a number of issues and opportunities facing solicitors who are (or who are considering becoming) mediators.

The first is which forms family mediators should be completing after a MIAM if the mediation does not go any further.

There has been some confusion on this matter regarding when a client attends a MIAM and no further mediation sessions will be appropriate. Which form should be completed by the mediator? Is it the FM1, Form A, Form A1 or C100?

If an application is made to court for a
section 8 order under the Children Act 1989
(child arrangements, specific issue or prohibited steps) or for a financial order or financial remedy, then the mediator must complete and sign the mediator section contained in application
forms C100, form A or form A1.

FM1 will not be used for these cases, but the FM1 will still be required for the not-so-common types of private children law applications in conjunction with forms C1 and C2.

Most clients who come to a mediation meeting want to continue with it, but it is important to recognise when a case is not appropriate for this type of proceeding.

Online mediation training

The growth in mediation is increasingly
resulting in clients using Skype or occasionally telephone as a way of communicating.

These tend to be for clients who live abroad, have a disability and find it difficult to get to the meeting room, or work very long hours.

There are reservations about mediating through technology. For example, if the client is under the influence of alcohol, you can’t tell, as you have no sense of smell, or if there is someone else present in the room, the mediator is not aware of their presence. At the same time, if clients want to resolve their family matters
using technology, mediators should embrace
this approach where appropriate.

Some mediators disapprove of mediating in this fashion and perceive it is unprofessional by not meeting the client face to face. There are
also concerns that this method may invalidate
the mediator’s insurance, but if it is carried out
in a prepared and efficient manner and results
in clients forming proposals for childcare and financial matters, it can only be a good thing.

Non-legal mediators

If the mediator is from a non-legal background, they can go on a family law update course or suggest that the client obtains legal advice in between sessions so that the proposals from mediation are workable at the end of the mediation process. Mediators cannot advise
but need to know when to signpost.

I have seen a memorandum of understanding from mediators that have equated childcare
time being dependent on the amount of child maintenance that is paid, which is a big concern.

I have also received a memorandum from a mediator where one client intended to buy the other client out of their share in the property. The person who intended to buy out the other person had not done any research into the mortgage position and this was not discussed in mediation. When the client met their mortgage company,
the mortgage could not be offered.

It leaves a difficult situation where the solicitor has to explain to the client that the proposals from mediation need to be revisited if they want the proposals to become a legal document.
This can be upsetting for the client as it means that more fees are incurred and there is a delay
to matters being finalised.

For the most part, I have not incurred problems with most non-lawyer mediators, and the rare scenarios above can be avoided by the clients seeking legal advice while mediation is progressing, or at least give this option to the
clients so that they can then make this decision.
In mediation, I advise sending each client a summary after each session so if an action point suggests obtaining legal advice, the client can decide if they want to see a solicitor before the
next meeting.

Documenting mediation

Minnow Films has been commissioned by Channel 4 to make a documentary about family mediation. The film company is keen to speak to as many mediators as possible about their work and experience. My own mediation firm had a research call then met the film team in London.

Researchers are looking to put in necessary measures to ensure that people who take part in the filming agree that the content may be shown by signing a document and viewing the programme before it is aired.

The production company is aiming to make
an engaging and sympathetic documentary
that will highlight the work of mediators and the experiences of couples and families involved who use the service. They believe that this is a unique opportunity to bring attention to mediation as an alternative to going to court.

At the same time, the programme hopes to portray the powerful and touching human stories that play out during mediation sessions. If you are a family mediator and wish to be involved in this project, you can email georgina@minnowfilms.co.uk to express your interest.

Solicitor-mediator

When I qualified as a family solicitor, it felt like
the right time to train as a family mediator. I found myself advising clients who did not want to
go to court but wanted to sit down and have discussions with their former partner to decide the childcare arrangements and how to divide their assets.

Divorce can be a very stressful time for
clients and, as a solicitor or mediator, the
involvement with the client tends to end when the decree absolute, financial consent order or memorandum of understanding and financial statement are finalised and sent.

I have also co-mediated on high-conflict
cases with a couple counsellor where some
of the meetings have been carried out by a shuttle mediation (with the clients in different rooms).

Mediating with a couple counsellor helps
with learning how to bring a sense of calm
into the room so that discussions can continue when conversations become heated. It is often
a case of reminding the couple that, if they
start to argue, to be mindful of the goals they want to achieve, rather than getting sidetracked. Counselling courses are also advisable if
you’re planning to enhance your softer skills when mediating.

As a mediator, a key skill is listening to what
is being said while simultaneously paying attention to what is not being said via the
client’s body language.

Securing work

After training as a family mediator in 2009 the first year was always hard to secure mediation clients.

Five years on, family mediation accounts for around 45 per cent of my workload and my practice receives a lot of emails and phone calls from newly qualified mediators wanting to observe cases or find out how to get more work.

The best advice on how to get more cases is to network, and one-on-one meetings are a great way to let people know what you do.

A collaborative pod group, such as a community group on family issues, is another good way to start, although it takes time to become known and trusted in the group. However, persevere with your new working relationship and you should start to
receive referrals.

Be passionate, confident and explain what the benefits of mediation are when talking to potential clients and they will be more than likely to keep you in mind when they need a mediator for a MIAM or for mediation sessions.

If you would like to work with separating couples, becoming a family mediator can be rewarding work. With MIAMs being made compulsory, there is a lot more scope for
solicitors and mediators to work collaboratively together during and at the end of this process. Clients need to get legal advice during
mediation and clients may also need the mediation proposals to be documented
legally by a solicitor.

If you are not providing family mediation,
it could be an extra to your current practice.
Rather than see it as a threat, now is a good
time to become involved in the family
mediation community. SJ

Austin Chessell is a child and family mediator at FAMIA and a collaborative family solicitor at Feltons Solicitors