There are other situations where an exemption may apply but before going to court you will need to fill in an application form for the issue you wish to resolve which lists the situations in which you would be exempt from attending a MIAM. A mediator will go through this with you and determine whether an exemption applies to your particular case.
HERE ARE SOME EXEMPTIONS
There is evidenced domestic abuse or violence against you
There is an ongoing family law matter
You need to make an urgent application because of the safety of you, your children, your wider family or your home
The application is about finances and you or the respondent is bankrupt
Where everyone already agrees
You don’t have any contact details for the respondent
You don’t want to give the respondent notice of your application
Where there are concerns about the safety of a child
There is not a mediator within 15 miles of where you live, or you tried three mediators within 15 miles of your home and you can’t get an appointment within 15 working days
You or your partner’s disability makes a mediator’s office inaccessible. (If the mediator can provide suitable facilities then the applicant will still be required to attend the meeting)
A mediator records that mediation isn’t suitable on a court form
You or your partner are not habitually resident in England or Wales
From 22 April 2014, divorcing and separating couples in England and Wales who want to use the court process to resolve any disagreements about children, money or must show that they have attended a separate Mediation Information Assessment Meeting (MIAM) before applying for a court order. The two people will usually be invited to separate private meetings; the applicant (the person asking the court to get involved) will almost always have to go to the meeting; the other person is expected to go, but does not have to unless the court says this must happen.
This is because the government and the courts believe that mediation and other forms of dispute resolution could be a good way to help many more families resolve their differences. Alternatives to going to court - including mediation, collaborative family law and arbitration - are often quicker, cheaper and less confrontational than the traditional court process.
A Mediation Information Assessment Meeting is a meeting with a specially qualified family mediator, who will explain the alternatives to the court process that are available to separating or divorcing couples. The purpose of the meeting is to give you an opportunity to find out whether some other form of dispute resolution, in particular mediation, could help you resolve the issues linked to your relationship or marriage breakdown (e.g. children, property and financial issues), so that you don’t have to ask the court to decide for you.
At a MIAM you will meet with a qualified family mediator, and discuss your personal situation on a confidential basis. Usually this is a one to one meeting, although sometimes you can attend part of the meeting with the person you are separating form if you want to do so. The mediator will provide information about options available to you to resolve the issues around your separation, and will discuss with you the advantages and disadvantages of each option. The mediator will also ask questions, and make an assessment to decide whether or not mediation is a suitable way forward for your family in your own particular circumstances.
Currently, many people who are separating or divorcing go to court to argue over issues they are better placed to sort out between themselves – such as getting 30 minutes extra contact time with their children or varying their allocated contact days. This is expensive and emotionally draining for all concerned. Families usually know more about their own circumstances than any else does, and the Government is keen to encourage people to make their own arrangements wherever possible, rather than going to court. There are several alternatives to the court process – such as mediation and collaborative family law – and the purpose of compulsory MIAMs is to enable separating couples to explore these and other options available to them.
Despite the recent legal aid cuts, public funding is still available for eligible people from specific mediation services. Depending on your capital and income, you may be entitled to publicly funded mediation (legal aid) and your mediator will assess this with you.
If you do not qualify for public funding, you will have to cover the cost of the MIAM yourself (unless your former partner attends and is eligible, in which case legal aid will pay for a MIAM for both of you) in the same way that you have to pay court fees. It is important to ask about charges prior to your meeting. Fees usually start at about £100 an hour, including VAT, but tend to be a little higher in London and the South East.
A family mediator is someone with the skills and the training to give people a safe and supportive environment in which they can reach their own decisions about what should happen to their family after a separation. A family mediator who is specially qualified to conduct MIAMs has the experience and the additional training to make sure that he or she can (a) help you talk through all the different options, giving you all the information you need to decide which one is right for you, and (b) assess whether or not you are going be safe and comfortable in a mediation environment.
As things stand, only one of you is required to attend a MIAM to talk through the alternatives to court and decide whether an alternative route could be appropriate for your family and its individual circumstances. However, the other person is expected to attend when invited to do so, and the court has the power to tell the person who has refused to attend a MIAM that they must do so.
Only in specific circumstances - such as where there is evidence of domestic violence or a risk of serious harm to children - will it be possible to ask the court to decide what should happen to your family without first attending one of these meetings. If you and your partner have already agreed on the arrangements you want to make for your family, and you are simply asking the court to turn that agreement into a ‘consent order’, you do not have to attend a MIAM first. The application form you have to fill in before going to court sets out all the possible exemptions that might apply to your particular application.
You cannot issue an application at court without a record of a MIAM having taken place or one of the specific exemptions above being claimed. The court will also check whether, if there has not been a MIAM, any exemption is validly claimed and will be able to stand the case down to allow a MIAM to take place. Members of the Family Mediators Association (FMA) have been working with the judiciary to set up duty rosters at courts, which will enable people to make a MIAM appointment with a qualified family mediator straight away, should they need to. Even if you are quite sure that mediation or one of the other alternatives to court is not for you, attending a MIAM will help you avoid unnecessary delays, whether you are the person who is applying to the court, or the other person.
If for any reason either of you chooses not to try mediation (or one of the other alternatives to court), or if the mediator decides that mediation isn't suitable for your family's situation, the case can continue towards court.
It is important that you choose a family mediator you can be confident in. Look for a mediator who has been professionally trained, who is properly supervised and who is a member of an approved mediation body that is a part of the Family Mediation Council. FMA membership means that the mediator in question is all of these things. Not all FMA members are qualified to conduct MIAMs, so do check this with the mediator you choose, but all FMA members, whether they are lawyers, counsellors, therapists, social workers or from a financial background, are professional family mediators who are committed to very high standards and abide by the Family Mediation Council’s Code of Practice.
The Roy Fletcher Centre, 17 Cross Hill, Shrewsbury, Shropshire, SY1 1JE
Telephone: 07984 272767