Mediation fails to reduce litigation over children

22 Feb 2013News

Solicitors and courts to blame for limiting impact of MIAMs

Greater use of mediation in family proceedings has had a limited impact on the number of children involved in private family law cases, recent figures show.

Since the obligation to consider mediation was introduced in April 2011, the number of children involved in private family law cases has fallen by 2,755 from 59,093 in the six month period before the protocol was introduced, to 56,338 between January and June 2012, according to MoJ figures.

Ann Northover, head of family at Forsters, said solicitors circumventing the rules has undermined the government’s aim of encouraging parties to settle outside court.

“Solicitors, in practice, will often use one of the exemptions (such as the application to court being made on an urgent basis because of a risk of harm, or an allegation of domestic violence) or will simply give an alternative reason in the box provided,” says Northover.

The pre-application protocol, introduced on 6 April 2011, requires parties to first attend a meeting about mediation, the Mediation Information and Assessment Meeting (MIAM) before making an application under private law proceedings relating to children and for financial remedies.

The application is made using a form ‘FM1’, confirming attendance at a MIAM or giving the reasons for not attending.

The Children and Families Bill 2013 would give statutory backing to MIAMs, making them compulsory for private and publicly-funded clients, with exceptions.

“Courts have been relaxed in allowing proceedings to continue to court without scrutinising the relevant form, but the practice is variable between judges and across the country,” says Northover.

The acting President of the Family Division issued a letter of guidance in December 2012 reiterating that both court staff and judges should be more rigorous in their approach.

With the introduction of the bill, says Northover, it is to be hoped that there will be a decline in the number of cases going to court.

“Mediation was presented as a panacea that would make divorce and family separation less time-consuming and costly for both the courts and the family involved,” said Malcolm Stevens, head of family at Hugh James Solicitors.

“However, the figures show that it has not had as much of an impact on behaviour as the government might have hoped.”

Couples have to pay for mediation, and if the case is a complex one, the cost may not be less than going to court, said Stevens.

Hazel Wright, a partner at Hunters Solicitors has been a mediator for 20 years, and has “seen it come and go as a fashion”, but believes that establishing mediation as an alternative is a “long-term goal”.

“The use of mediation will extend massively after April, and I have a concern that some families will be left with no protection if relying solely on mediation. Mediation isn’t a regulated profession; the man who owns the corner shop can become a mediator,” said Wright.

Wright believes that regulating mediators will be a step towards making it an alternative to court proceedings; reputable, trust mediators are however the majority.

Austin Chessel, a solicitor and mediator at FAMIA, echoes that not all courts are checking if a FM1 form has been completed after a MIAM has been filed at court.

An average family mediation case will be resolved within 110 days, compared to 435 days for a non-mediated case, observes Chessell.

“It is hoped that couples will convert to jaw jaw through mediation rather than war war at court, although it has to be appreciated that not every case is appropriate for the mediation process.”