HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON
INFORMATION ON MEDIATION (MIAMS)
Important note: Please note that this information is not intended to be legal advice. You are advised to seek legal advice.
This page explains the process of family mediation, when mediation is necessary and the expected standards of a family mediator.
Mediation is the process by which families can negotiate about future arrangements for children with the help of a neutral third party.
The mediator does not tell parties what to do, but can help the parties to reach their own agreements amicably, whilst trying to improve communication between them.
Benefits of Family Mediation
Mediation is recommended when parents find it hard to agree on making suitable arrangements for children after a family breakdown.
There are several advantages to attending mediation, such as:
giving you more control over what decisions are made in relation to children, rather than applying to the courts;
providing a less stressful way of dealing with sensitive matters;
improving communication and helping you to sort out future arrangements;
allowing arrangements to be reviewed and changed more easily, so long as they are mutually agreed by both parties; and
providing a quicker and cheaper way of resolving disputes.
Any agreements made during mediation are not legally binding in the sense of being enforceable in a court.
Your barrister can provide legal advice and guidance on your agreement and the agreement can be used in court at a later stage in order to create an Order by Consent.
Mediation Information and Assessment Meeting (MIAM)
The first step in mediation requires a Mediation Information Assessment Meeting and is the initial meeting with your mediator. This will help establish whether mediation will be suitable in your circumstances, and whether parties want to reach an agreement.
Process of mediation
The mediator will try to find common ground between you. If you’re not comfortable with being in the same room as your ex-partner, the mediator can arrange ‘shuttle’ mediation.
This is where the mediator speaks with you alone and then speaks to your ex-partner with your proposals separately. It might take more than one session to reach an agreement.
Upon an agreement being reached between you and your ex-partner, the mediator will draw up a document called a memorandum of understanding so everyone understands what has been agreed.
Mediation is a requirement unless exempted
From April 2014, anyone applying to the courts for assistance in resolving disputes about children or finances will be required to attend a Mediation Information Assessment Meeting. This includes any applications for:
Child Arrangement Order
Specific Issue Order
Prohibited Steps Order
Parental Responsibility Order
An order appointing a Child’s Guardian
Removal from Jurisdiction Order
Special Guardianship Order.
You will not need to attend mediation for the above applications if you are applying for an order by Consent or if there are emergency proceedings, care proceedings or supervision proceedings for a child or there is an Emergency Protection Order, Care Order or Supervision Order in place.
You can also be exempt from having to attend a MIAM, if you fulfil one of the exceptions. A few of the main exceptions include:
where there has been any form of domestic violence between you and your ex-partner and it has been reported to the police, courts, health professionals or specialised agency;
where the child is the subject of a Child Protection Plan or a section 47 enquiry.
where the situation is a matter of urgency, i.e. a risk of harm to the child’s safety;
where mediation has been attempted within the last four months; or
where the person seeking to make the application does not have sufficient contact details of the other person to which the application relates.
Role of Mediator
A family mediator must act impartially and avoid any conflict of interest. This means that a mediator must not mediate on a dispute where they have acquired relevant information about the parties.
Furthermore, a mediator must remain neutral on the outcome of the mediation. They must not seek to enforce their preferred outcome or influence on any of the parties.
You must also expect the mediator to keep confidential all details obtained during the course of mediation. The mediator cannot even disclose information to the court, without the consent of both participants.
The mediators may only disclose information where there are serious allegations of harm to a child or adult.
Mediation is a voluntary process and any session for mediation can be suspended or terminated, if it is felt that the parties are unwilling to take part fully in the process.
Mediators must also encourage the participants to consider the wishes and feelings of the children.
Length of Mediation
Mediation can continue whilst it meets the needs of the individual parties involved.
The initial meeting lasts approximately 45 minutes. Full mediation sessions will usually last between 1 to 2 hours, depending on the complexity of the situation.
Cost of Mediation
If you are on a low income or in receipt of certain benefits, you might be able to get Legal Aid to help with the costs. If only one party is eligible for legal aid, Legal Aid can cover the first MIAM session for both of you.
The mediator should be able to assess whether you are eligible for legal aid or you can contact the Civil Legal Advice. For the costs of mediation, check with your mediation provider (Family Mediation Council and National Family Mediation)
Mediation – No Agreement Reached
If you cannot reach an agreement with the other participant, or mediation fails for any other reason, for example the other party will not attend or the mediator feels that mediation is unworkable, you must ensure that the mediator signs and certifies your application form and you may proceed with your dispute to the courts. Your barrister can provide you with legal advice on the preparation of your case for court.
Chambers of Helen Alexander-Direct Public Access-Family Court Barrister