Family update
Family law update:
compelling reasons for attending the MIAM – Part 2
The 2011 Family Justice Review heralded a cultural sea change in the approach to resolving family disputes, in which mediation was slated to play a central role.¹
About the author
Kenneth Clarke is a lawyer mediator at Laceys Mediation.
Partly as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, domestic violence is being raised more often in mediation information and assessment meetings (MIAMs). The author has found that some attendees raise the presence of domestic violence, and automatically assume that mediation will be unsuitable. Some have been instructed that this is the case, and urge the author (as the mediator) to make a swift declaration to this effect. A word of caution: while mediators must be vigilant in weeding out cases that are clearly unsuitable due to risk management factors or the high level of domestic violence prevalent, at the same time consideration must be given about whether mediation could still take place where the conduct alleged is on the lower end of the domestic violence spectrum.
Of course, if suitability is established, the client still has the choice of whether or not to mediate. Shuttle mediation is often an excellent way of managing such cases, and indeed can result in negative behaviour patterns being addressed and, if not neutralised completely, reduced significantly. Critically, in all cases where mediation takes place against a domestic violence background, the mediator must have the requisite training and skills to be able to handle high-conflict cases.
What is behind the depressing statistics surrounding attendance at MIAMs? Is this down to judicial prejudice against mediation (ie, an assumption that the courts and the Children and Family Court Advisory and Support Service are better than mediators at resolving matters), or inadequate publicity by the Ministry of Justice (MoJ) resulting in a lack of knowledge about how mediation actually works in terms of the benefits it can offer participants? Clearly, more education is required to reinforce the differences between litigation and mediation in order to encourage compliance with a MIAM.
Family disputes arrive at courts or mediation in all their complex glory. A large majority are driven by strong emotions that hamper clear and rational thinking, and promote conflict rather than co-operation. This creates and drives entrenched positions and unreasonable expectations, and fosters a win-lose mentality. When people are emotional and conflict driven, they are not in control of either the dispute or its outcome.
The system is currently failing and it needs fixing in terms of requiring both parties to attend a MIAM
The unique DNA of mediation makes it tailormade for most family disputes. In the hands of a competent mediator, it has the ability to change the narrative framework of the dispute, creating an integrative dialogue (which takes account of both parties’ needs) rather than a narrow distributive dialogue (for example: ‘What concessions can I get from the other party, and how few can I concede?’).
If a traumatic and expensive court battle is to be avoided, both parties should be given maximum information and encouragement to enable them to consider properly whether mediation, or some other alternative dispute resolution process, is preferable to court proceedings. The courts must scrutinise applications robustly and ensure that a MIAM is attended unless the exemptions clearly apply.²
A MIAM is often the first step in realigning the negative attitudes and prejudices of the hostile, the ignorant and the sceptical. In 2015, the author conducted 650 MIAMs; in the ones where both parties attended, the vast majority converted into mediation and most reaped the benefit by reaching a full or partial settlement.
One of the most distinguishing features of mediation - which is totally absent from the litigation process - is that mediation seeks to empower both parties, giving them the tools they need to fashion the agreements that will shape their futures. Power imbalances are managed better than in a courtroom: power is distributed more evenly, whereas often the court is used as an instrument of power or an extension of the control that an embittered party is already exerting on the person who was once their partner, but in court is neutralised as the ‘opponent’.
In mediation, the reduction of conflict is indispensable to fruitful negotiation. This essential requirement was manifestly lacking in the cases featured in the lamentable BBC2 documentary series ‘Mr v Mrs: call the mediator’ , which was the main reason most of those cases failed to reach resolution and - worse - seemed to exacerbate the participants’ already toxic relationships.³
Those who shun or eschew MIAMs are deprived of receiving several important facts:
- Mediation can provide more lasting changes - over time - as opposed to litigation. This is a vital consideration in disputes about children, where ongoing communication and cooperation is required. Studies have shown that mediation has achieved an overall reduction in parental conflict and hostility.
- There is lower relitigation among parties who have mediated.
- Agreements in mediation have durability and compliance, and clients are satisfied with the outcome.
- Costs are minimal compared with litigation.
- The mediation process is quicker than protracted court proceedings (most of the author’s cases are resolved in three sessions).
In the author’s opinion, a crucial trick was missed when the Children and Families Act 2014 was drafted because the Act only made it mandatory for the proposed applicant to attend a MIAM. The respondent is only ‘expected’ to attend (Practice Direction 12B – Child Arrangements Programme (PD12B) para 5.3).
Now, with the greatest of respect, while Admiral Nelson’s rallying cry of: ‘England expects’ before the Battle of Trafalgar may have rallied conscripted troops to action, mere expectation simply will not work with a stubborn and recalcitrant respondent, whose skewed expectations have no room for the niceties of mediation. Worse, a lot of respondents refuse or are reluctant to attend a MIAM because they do not have one jot of understanding about the purpose of a MIAM or what it entails. Without a scintilla of knowledge about how the process actually works, they blindly - and often erroneously - conclude that ‘mediation won’t work for me. This is akin to taking a new appliance out of its box and saying: ‘I can’t assemble this’ , without looking at the instructions.
As discussed earlier, a significant number of litigants in person (LiPs) are airing their disputes in the courts. So, the last thing our overworked family justice system needs is a lacuna in the legislation, which is then compounded by the courts not following due diligence under the rules when applicants turn up with their C100 court form or their Form A. It was particularly alarming to read that there has been a 22% rise in LiP children applications from January-March 2012–13 to January-March 2013–14.4 LiPs present a raft of problems, with which the system is not equipped to deal. This increases the likelihood of children cases degenerating into intractable contact disputes that take up far too much of the court’s time and resources. (Incidentally, the author has always considered the term ‘intractable contact dispute’ to be something of a misnomer: it is people who are intractable, disputes are capable of resolution). Often, applicants in these cases assume that the respondent will not attend a MIAM, ‘so there’s no point in asking them’.
The respondent should be required to attend a MIAM once the applicant has made a referral, preferably before or as soon as possible after the issue of proceedings, unless the circumstances of the case make this untenable. The author thinks that it is sometimes forgotten that after proceedings have been issued, the court has the power to ‘soothe the savage beast’ of adversarial conflict, ie: ‘The judge is obliged to consider, at every stage of court proceedings, whether non-court dispute resolution is appropriate' (PD12B s6.1).
In any event, does not a proposed respondent to proceedings have the same right as a proposed applicant to receive information about their alternative dispute options before the issue of court proceedings? Many such respondents, even those who are so-called ‘intractable’ , can be persuaded to give mediation at least one session. What is there to lose? If mediation fails, there is still the option to go to court. Between 75–80 % of the author’s cases achieve positive outcomes on one level or another.
The author has seen many respondents at MIAMs who, initially, present as hostile and unwilling. However, their belligerent resistance to mediation disappears faster than a politician’s promise once the benefits of the process are laid out before them. They might say: ‘I’m only giving it one session’ , but that session could be ground breaking in what it achieves between the parties in terms of reducing tensions and conflict, and fostering co-operation with the other party. Therefore, extending the requirement for respondents to attend a MIAM is sensible, reasonable and justifiable.
In children cases, I would say that attendance is imperative. Most child disputes are fuelled by negative emotions linked to past issues concerning the manner of the parties’ breakup and any subsequent breakdown in communication. Mediation is in the best interests of the child because the therapeutic and holistic elements present in mediation are better for addressing these stubborn, underlying emotional issues.
There needs to be better training for mediators in relation to how MIAMs are conducted, and all professions dealing with children disputes need to have a better understanding of how the mediation process works at its interface.
The importance of the MIAM cannot be underestimated: it is the first and best opportunity to point potential litigants towards a better dispute resolution mechanism, and early referral to mediation gives the mediator a better than average chance of helping the parties achieve a positive outcome.
According to the MoJ, in the period from April to June 2015, MIAM attendance stabilised at half the pre-LAPSO levels, and mediation starts were up by 33%. Furthermore, 64% of all mediations led to a successful outcome, with the children category having the highest rate of success at 67%.
Mediation is not failing in most cases where both parties have attended a MIAM and gone on to mediate. Mediation provides a first-rate service to people who need guidance, reassurance and confidence in a resolution process that does not leave them in a worse state than before they started it.
Caroline Dinenage, parliamentary under-secretary of state for Women, Equalities and Family Justice, said: I want to see a system which minimises the impact of separation on parents and their children, brought about by a cultural change to enable people to solve their own disputes in a less acrimonious way and not look to the court to do it for them. With the right support, most separating couples should not need to take their disputes to court.5
The minister’s sentiments are laudable, sensible and insightful. However, the tide has yet to turn in favour of a cultural sea change, which remains a distant promise in a landscape of scepticism, anarchic thinking and professional self-interest.
The system is currently failing and it needs fixing in terms of requiring both parties to attend a MIAM. Then, and with apologies for the oxymoron, separating couples and their children might have a fighting chance of avoiding bitter, brutal and costly fighting in the courts.
The next article in this series will dissect the essential elements that are necessary for MIAMs to be effective in achieving a wholesale conversion to mediation.
1 See ‘Family law update: compelling reasons for attending the MIAM – Part 1’ (2017) June CILExJ pp26–28
2 See note 1
3 Kenneth Clarke, ‘Mr v Mrs: call the mediator’ : lessons in how not to mediate’ , (2016) November CILExJ pp16–18
4 Ministry of Justice and Legal Aid Agency: Implementing reforms to civil legal aid, HC 784 session 2014-15 , 20 November 2014, http://tinyurl.com/ycv6df6c
5 Family mediation update and strategy for 2016, 2 March 2016, sent to all family mediator partners, available at: http://tinyurl.com/yaxqjbja