Mediation in family separation – a way forward

Year Published: 2012

Last year, the Government introduced a protocol under which any person wishing to issue family proceedings, would be required to attend an initial meeting with a mediator, known as a MIAM (Mediation Information and Assessment Meeting).

It was hoped that by requiring people to meet with their former spouses/cohabitees before proceedings commence, that many matters could be agreed amicably and Court proceedings would be avoided.

The pre-action protocol and MIAM would effectively be a precondition of issuing proceedings, however at the same time the Government refused to make attendance at MIAM compulsory, on the ground that compulsory mediation was a contradiction in terms. The result, in some places, has been that the pre-action protocol is not being followed.

Despite this, mediation is considered to be a useful exercise and should be tried wherever possible. It really depends upon the personalities of the parties, the issues, whether or not they have a genuine desire to reach agreement as to how successful it is. It is clearly not suitable in cases where there has been an element of domestic violence and one party may be fearful of the other. In these cases each individual party can have a separate MIAM for example.

The difference between mediation and negotiation is that in negotiations solicitors acting on behalf of their clients try and reach a solution. When a solicitor negotiates a divorce or family dispute, the aim is to reach a solution about arrangements for the children, property and finances etc, rather than trying to get the couple back together.

Whereas in mediation a neutral mediator works with both the parties, who will still have their solicitor acting for them and providing legal advice throughout the process, in order to assist the parties in reaching a solution. Some trained mediators are also family lawyers however and although the mediator is not allowed to provide legal advice, having experience of family law benefits both the parties attending mediation. Therefore, the quality of the mediator is also an important consideration.

Mediation may be used where negotiation has been tried and reached a deadlock. If neither negotiation nor mediation works then the way forward would be to issue proceedings, this being the last alternative.

As solicitors at SAS Daniels we encourage our clients to reach agreement wherever possible and regularly refer cases to mediation in the hope that matters can be agreed.

We are always there to provide our clients with legal advice throughout the mediation process.

The number of cases referred to mediation increased by over 50% last year. It has to be said that agreeing matters with your former partner at mediation is preferable to issuing Court proceedings and a Court Order being imposed upon you.

Mediation however is not for everyone but if it assists the case in settling, it is an option that certainly should be followed, provided that an experienced family solicitor is there in the background to provide legal advice throughout the mediation process.

Should you require any further information regarding a referral to mediation or in respect of family problems generally, please contact our Family Law team on 0161 475 7676.

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