Mediation: Why We Should Be Aware

• An agreed resolution to a divorce is far more effective than a judge-imposed one in turning round what can be a potentially hostile situation. The actual process of mediation is a good opportunity to look at what underlies the difficulties in divorce arrangements, and at present there is little awareness about the mediation process and its long term benefits.

• Mediation Information & Assessment Meetings became part of the application process on 22 April 2014, and since 1 January 2016 the required certificate (MIAMs) can only be signed by specially accredited family mediators. The most frequent certificate says that the mediator does not consider mediation suitable, often because the client does not want mediation or it is not otherwise suitable.

• According to figures recently released by the MoJ on divorce and for making arrangements for children, there were 20,693 financial arrangements applications between January and March 2016 (down 14% from the same quarter in 2015). However, fewer than half contained fully signed certificates, MIAMs, to confirm that a mediator had given mediation information and the assessment of suitability for mediation.

• 71% of financial applications included this certificate, but only 18% of applications were about arrangements for children.

• A key reason for this disappointing figure is the fact that the courts are under-resourced. If the staff issuing the court applications do not have the resources to check the forms properly, and judges do not have the right to refer an application very early on to mediation, the courts will continue to be overburdened.

• One possible solution may be to introduce two kinds of MIAMs; one where litigation is inevitable, to be signed only when the possibility of mediating any of the issues has been explored and rejected – and a second where mediation on at least one or more issues is potentially possible.

• Another solution would be for the judge, at the first possible hearing, to have the option to refer applicants to mediation, before proceeding to use further court resources, and before the separation difficulties become more entrenched. This power exists, with costs penalties for refusal, in civil disputes.

Hazel Wright, certified family mediator and Partner at leading Lincoln’s Inn law firm Hunters incorporating May, May & Merrimans.

(Source: Hunters)