For many years it has been a requirement of public funding in most family cases that the couple attempts mediation before funding is made available for proceedings. This has widely been seen as a success.
In February the Government announced a protocol designed to ensure that all separating couples, whether publicly or privately funded, must assess their alternative dispute resolution (ADR) options: would mediation or collaborative law be a better way of resolving their family disputes than court proceedings?
On 6 April the new Pre-application Protocol came into force, introducing compulsory mediation information
and assessment meetings (miams).
The protocol does not introduce compulsory mediation. Instead it introduces compulsory meetings to discuss the options available for resolving disputes, one of which will be mediation.
Speaking on the protocol earlier this year, Jonathan Djanogly MP pointed out that more than 60 per cent of publicly funded family clients who attended miams went on to resolve their disputes away from the courts.
“There’s no reason why self-funding clients shouldn’t also resolve their disputes away from the courts,” Djanogly added.
Across the profession the move to raise the profile of ADR in family cases has been widely welcomed. The statistics for publicly funded cases show that the average case is resolved in 110 days through mediation compared with 435 days through the court, and the costs are less than a fifth of litigation costs. For privately funded cases the cost savings between mediation and litigation will be even greater.
But the real benefit of mediation is that it moves couples away from a defended adversarial process to an environment where they work out their own way forward. There is a considerable emotional benefit to the family, which is especially important where there are children.
So the Government’s aim to increase clients’ awareness of their ADR options before positions harden can only be a good thing. Djanogly emphasised the need for this, saying: “For many people information is the biggest barrier. We want people to be fully aware of the options.”
Inevitably there are teething problems. Atul Sharda, head of mediation at the Ministry of Justice, has stated that the protocol is intended to replicate the system already in operation for couples who are publicly funded. But there is one critical difference: the protocol only requires the applicant to attend a miam session before issuing proceedings; there is no such obligation for the respondent. The absence of an equivalent obligation risks creating a lower take-up rate.
All but one of the miams I have conducted since 6 April have been with constructive and concerned individuals, keen to sort things out in a way that is fair and best for the family and willing to mediate if their other halves agree. But as yet no partner has taken up the invitation to meet to discuss their options. It may be that some applicants will have to resort to court proceedings.
It is to be hoped that district judges and magistrates will plug this gap by requiring both parties to lodge miams forms at the start of proceedings. It is early days for this procedure and, given that there were only six weeks between the announcement and the new protocol taking effect, there has been little judicial training so far. It is understood that this is scheduled for the autumn.
Until then the message is best summed up by Lord Justice Wilson, Lord Justice of Appeal in the High Court, Family Division, who has said: “When we face serious family problems we still usually say to ourselves, ’I must find a solicitor’. But in many cases we’d do better to say, ’We must find a mediator’.”
Helen Adam, co-founder, Wells Family Mediation