Since April 2011 a court rule referred to as a pre-application
protocol has made provision for people to attend a Mediation
Information and Assessment Meeting (a 'MIAM's') before
commencing financial proceedings or proceedings in respect of
children. At present this is not an absolute requirement and
the protocol uses the word 'should' rather than 'must.
In addition there are a number of exceptions to this
'encouragement' which apply where there has been domestic
abuse, bankruptcy or the proposed application is urgent within a
given definition.
The pre-action protocol stipulates that before an applicant makes
an application to the court, contact should be made with a family
mediator to arrange for the applicant to attend a meeting about
family mediation and other forms of alternative dispute
resolution. If the parties are willing to attend together,
the meeting may be conducted jointly but, where necessary, separate
meetings may be held. If the parties do not attend a joint
meeting, the mediator who undertakes the MIAM's will invite the
other party to a separate meeting.
At a MIAM's the mediator will provide the parties with
information about the range of alternatives to litigation which, in
addition, to mediation include using the collaborative process or
arbitration. The expectation was that mediators would
highlight the benefits of such alternatives compared to the court
process in terms of time, expense and stress. In practice it
may take several weeks to organise a 'face to face'
MIAM's although some mediators will do them by telephone or
using skype. The cost is usually £150 to £300 per
person.
When the pre-action protocol was introduced, it was expected that
attendance at a MIAM's would be the norm and that the court
would strongly discourage individuals from starting proceedings
without having attended a MIAM's. The stated aim was to
encourage people to find solutions to their problems ouside of the
court environment. In practice this has aften not been the case and
the court has rarely tried to insist on a MIAM's as a
pre-condition to a court application. The evidence suggests
that the number of people actually taking part in mediation has
fallen.
However, the situation is likely to change in the not too distant
future. Assuming it becomes law the Children and Families
Bill will make MIAM's compulsory for all couples. This
Bill is unlikely to be passed before spring 2014 but should then
make it much more difficult to avoid a MIAM's.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.