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MIAMs: a worthy idea, failing in delivery

Andrew Moore and Sue Brookes, both of Mills and Reeve LLP, consider mediation information assessment meetings, highlighting the flaws in the process and what can be done to improve the current system.

Andrew Moore, Principal Associate, Mills and Reeve LLP

Sue Brookes, Principal Associate, Mills and Reeve LLP








Andrew Moore and Sue Brookes, Principal Associates, Mills & Reeve LLP

This article considers mediation information assessment meetings, why they have been introduced and what impact they have had in practice, highlighting the flaws in the process and what can be done to improve the current system.

What is a MIAM and why do we have them?
A mediation information assessment meeting (MIAM) is a meeting carried out by an authorised family mediator1, at which the mediator provides information about the principles, process and different models of mediation and the other methods of non-court dispute resolution; assesses the suitability of mediation as a means of resolving the dispute; assesses whether there has been, or is a risk of, domestic violence; and whether there has been; or is a risk of, harm by a prospective party to a child who would be the subject of the application2.

The MIAM is not just to provide information on mediation. It is a forum in which litigants can be signposted to any relevant support they may need, for example drop in clinics being run by the local court or Resolution group, local support services or family consultants, as well as to online material such as the Cafcass website.

Attending a MIAM is a compulsory requirement3 before anyone can make an application to the court for certain financial remedy orders4 or certain private law applications relating to children5, unless a MIAM exemption or a mediator's exemption applies6. The application must therefore contain or be accompanied by confirmation that either the applicant has attended a MIAM or that a MIAM exemption is applicable7.

The reason why a MIAM is required can be found in the Family Procedure Rules 2010 (as amended) which confirm that the 'adversarial court process is not always best suited to the resolution of family disputes. Such disputes are often best resolved through discussion and agreement, where that can be managed safely and appropriately…' Attendance at a MIAM provides an opportunity for the parties to a dispute to receive information about the process of mediation and to understand the benefits it can offer8.

There are of course other, perhaps more cynical, reasons why they were introduced, including trying to relieve some of the pressure on an already over-burdened court system and that mediation costs the government significantly less than litigation.

The effective use of mediation by our commercial litigation counterparts has also shown family to be lagging behind and in need of a procedural overhaul. MIAMs were therefore conceived with all of this in mind.

Are they working in practice?
MIAMs have been around since the Family Procedure Rules came into force in April 2011 but in practice they have not have not helped to overhaul family law in the way that had been hoped. When they were initially brought in, anyone wanting to issue an application for certain financial remedy orders or certain private law applications was expected to attend a MIAM and then complete a separate form9 to confirm they had done so. The need to do so was however largely ignored in practice.

In April 2014, the law was amended to ensure that the MIAM became a statutory requirement10. Unfortunately, this has still not had the effect of keeping people out of court, which was the government's intention.

Statistical grim reading
The available data illustrate how ineffective MIAMs are in practice.

  1. The recent statistics issued by the Ministry of Justice (MOJ) in their 29 June 2017 report11 show an 11% and 13% increase in private law children and financial remedy proceedings respectively compared with the same period in 2016. 
  2. Research undertaken by the MOJ in 201512 found that in the year following LASPO13 the number of publicly funded MIAMs in private children cases fell from 30,662 to 13,354 and the number of mediations from 13,609 to 8,40014 (see more on LASPO below). 
  3. In the same report, mediation or collaborative law had been attempted before court proceedings had been initiated in just 6% of the cases reviewed by the researchers15. In 37% of the cases reviewed, the applicant had either not attended a MIAM, it was unclear whether they had done so, or their non-attendance at a MIAM was not explained.16  
  4. National Family Mediation (NFM) reported on 23 June 2017 that, based on their research, six out of ten couples were ignoring the need for a MIAM – just 35,627 of nearly 90,000 applicants having followed the MIAM process.

Why are they failing?
So why has there been so little take up for MIAMs, mediation and other DR processes, when ostensibly they are being supported by the government and the judiciary? Who or what is to blame for contributing to the above results, which are the polar opposite of what the government had hoped and expected at the time MIAMs were introduced. The following have all certainly contributed in their own respective ways.

LASPO
LASPO has dramatically reduced the availability of legal aid for legal advice and solicitor representation in the majority of family cases, in effect removing it unless there is sufficient evidence of domestic abuse. As a result of LASPO there has been a 20% increase in cases between 2013 and 2017 where both parties are unrepresented – now accounting for 34% of all cases17.  As fewer litigants have access to legal advice, they are not being 'signposted' to mediation as they were previously, nor are they aware of the requirements of a MIAM. Pre-LASPO, 80% of publicly funded MIAMs were referred through to the mediator by legal aid solicitors. Post-LASPO, those referrals account for just 10%. Although other referral sources to mediation have increased, with mediators now having to market their services much more and in different ways, this has not been anywhere near enough to compensate for the loss in legal aid solicitor referrals18.

This is a travesty considering legal aid is still available for mediation and the MIAM is free where at least one party meets the relatively generous financial criteria for public funding. Even a party who does not meet the financial eligibility criteria for legal aid is entitled to have the MIAM and first meeting covered by legal aid, as long as the other party is eligible. If the parties were then to mediate, those entitled to legal aid would have their mediation fees paid. If parties were to engage in mediation then there would also be some, albeit limited, legal aid to support that mediation process ('Help with Family Mediation') – up to £1,560 during and at the end of the mediation process, and a further £200, if a financial agreement has been reached, to assist in the drafting of a consent order and issuing the proceedings.

Family lawyers
Solicitors have traditionally been the gateway to any family law issue being resolved. They still are to a large extent, although it is increasingly the case that potential clients are looking elsewhere for support in the first instance19. If those people who instruct solicitors do not go to MIAMs, it is almost certainly the case that solicitors are not encouraging them to do so. 

NFM's Chief Executive, Jane Robey, in her recent post of 23 June 2017, questioned whether solicitors were 'finding their way around the law, encouraging their clients to exempt themselves from mediation, so that they can carry on with the case and carry on charging their clients' and that the MIAM to them was a 'box ticking exercise'.

Financial motivations for the solicitors themselves should not be a central consideration when recommending process options for their clients. Obviously solicitors certainly should not litigate a case or encourage solicitor-led negotiation in order to maximise fees out of it. However, the writers fear that this is exactly what does happen in some cases.

Perhaps more commonly, some family lawyers have had little exposure to non-court dispute resolution in practice and cannot offer the flexibility of tailoring the process to meet their client's specific needs and objectives. Nor do they appreciate the benefits to the clients of doing this for them. Keeping parties out of court remains an 'alien concept' to many solicitors, who are still approaching their cases in the traditional way, as they have always done, regardless of the impact on the families involved.

Solicitors also forget that, even whilst proceedings are continuing, it is never too late for non-court dispute resolution (see the points made about the court below).

Solicitors may be self-selecting the process for their clients without really giving the client the full range of options. It is easy to think that a client is not suitable for mediation or collaborative law because of the level of dispute between the parties. However, this is why a referral to a MIAM, even before court proceedings are contemplated, is so worthwhile. A mediator who is specifically trained to help those in conflict to reach consensus is inevitably better able to screen for suitability for non-court dispute resolution and the mediator will have a better idea about how best to help the clients throughout the mediation process to make it work for the clients. 

If the potential barrier to a client being suitable for mediation is that they are not emotionally strong enough for a non-court dispute resolution process involving face to face contact, then solicitors should not dismiss it entirely. Would a family consultant or counselling prepare the client for the process?  Could discussions be delayed to allow clients to ride out the post-separation emotional rollercoaster without ultimatums in respect of progress being made? Is the case better suited to co-mediation20, anchor mediation21, mediation with solicitors present, or collaborative law22, so that there is additional support in the room for the participants. If a determination is required, why not consider arbitration23 with its many benefits including speed, choice of arbitrator, location, and process bespoke to the parties?

There may also be a misconception by family lawyers that mediators might not have the right knowledge or background to understand the complexity of the case in hand. However, lawyer mediators will have the requisite background to support and assist the vast majority of clients through the mediation process and provide information to the parties where required. There remains a role for the solicitor in supporting the mediation and, if necessary, financial consultants, a few of whom may have trained as mediators and understand the process, could join meetings too. Non-lawyer mediators are also highly skilled at what they can do, focussing more on helping the parties to be able to communicate and to be able to put the needs of their children first rather than overloading participants with information and focusing on the end result.

Solicitors may also be concerned about the prospect of success and the possibility of further delay for their clients. However, in the vast majority of cases, mediation will be quicker, more constructive and more likely to achieve an outcome which the parties can live with. Contrast the long drawn out court process, the fact that, ultimately, by litigating parties are handing over the decision making to a third party rather than retaining control themselves, and that the adversarial nature of litigation sets people against each other rather than encouraging and supporting them to work through issues together, and you can see the advantages that mediation and other non-court dispute resolution can have. 

Solicitors probably do need to be better at matching mediators to clients depending on their backgrounds, subject matter expertise and/or professional backgrounds, for example a mediator who is qualified to directly consult with children. Solicitors lack of understanding of the options within the mediation process should not be a barrier to mediation being successful.

The name "MIAM"
Is this in itself part of the problem? Do people really understand what a MIAM is? As names go, the acronym – and its full title – could hardly be less transparent or appealing. Resolution have identified it as an issue and in their manifesto have proposed it is renamed as an 'Advice and Information Meeting' ('AIM') which will also 'make clear that they are not solely focused on mediation'24. Even PD 3A25 describes the MIAM as a 'short meeting that provides information about mediation as a way of resolving disputes' with no mention of the other non-court dispute resolution processes, so this is a central problem. The change of name is also recommended in Mapping Paths to Family Justice26.

Even if there is a name change and MIAM providers become better informed on other non-court dispute resolution processes, the choice for litigants remains stark given the governments funding focus being on mediation as the alternative to court. Resolution's Manifesto27 asks the government to 'extend the availability of legal aid for all dispute resolution options'.

The exemptions
MIAMs are supposed to take place in the vast majority of private law children and financial remedy proceedings, so it can certainly be argued that the poor uptake of MIAMs is a result of people relying too easily on the various exemptions. It cannot be that the vast majority of cases have a valid exemption and are genuinely applied for.

Exemptions include domestic violence, child protection concerns, urgency, previous attempts at non-court dispute resolution in the last four months and various other reasons why attendance at a MIAM may be more difficult in practice. Whilst there are also going to be cases in which mediation or collaborative law would not be appropriate in practice, the allowed exemptions are very wide-ranging. Just because, say, mediation as one option is not appropriate for the specific parties, it does not automatically follow that the parties would not benefit from attending a meeting which is aimed at exploring all of the options and providing information by way of signposting to help them through the separation process.

However, both the clients themselves and their solicitors can prejudge the potential effectiveness of a MIAM, assume that mediation is not for them and claim whichever exemption they can most easily come within to avoid the need to attend a MIAM. Solicitors who believe in non-court dispute resolution and who are committed to keeping their clients out of court will always encourage MIAM attendance. Those less committed to non-court dispute resolution will more readily claim the exemption that the parties have "participated in another form of non-court dispute resolution" within the last four months without the parties having attended a MIAM in practice, but based loosely on attempts to negotiate between the parties directly or the solicitors themselves.  Individuals will have their own views either way and are likely to tick the box accordingly.

The court is not currently required to investigate how valid any MIAM exemption relied on is in any given case. It has the power to do so where appropriate28, but the guidance on this is far from mandatory and the writers question the extent to which the courts do this in practice.

It is therefore arguable that the exemptions as currently drafted enable those parties, and their solicitors who are not actively encouraging parties to keep out of court, to effectively ignore the requirement of a MIAM altogether.

Is the answer to remove all exemptions for all cases unless speed really is of the essence, meaning all cases needed to have a mediator's exemption?  As stated above, there will always be cases where non-court dispute resolution is not appropriate e.g. dishonesty and lack of disclosure or potentially where there has been domestic abuse. However, there will also be cases where mediation can still be very effective if handled in the right way (e.g. a civil law style shuttle mediation or mediation with a therapist involved throughout the process). Relying on exemptions really should be the exception and not the rule.

Those conducting MIAMs (mediators) 
The MoJ's 2015 research found that, following a MIAM, the majority (66 – 75%) of privately funded cases did convert to full mediation29, and that statistic, even in the immediate aftermath of LASPO, is similarly replicated for public funded matters, with 63% converting (up from 44% pre LASPO) and 79% leading to a full or partial agreement being reached (up from 67%)30. However, these statistics, whilst positive, have to be read in conjunction with the fact that, although conversion rates have increased once a MIAM has taken place, there has been a 60% reduction in cases where MIAMs occur.

So what can the mediators do about this? How can they help to convert the other cases (if it is indeed appropriate to do so) and how can they help to ensure that more MIAMs take place?

One aspect which the MoJ's 2015 research highlighted and is worthy of note by mediators, is that the conversion rate of MIAMs to full mediation increased from 73% to 93% when MIAMs were conducted with both parties present, as opposed to those conducted separately. This is certainly worthy of further consideration, although it is not always appropriate to meet the clients together before the appropriate screening has taken place.

Should more people be able to do the MIAMs? At present the only MIAM providers are those provisionally or fully accredited by the FMC31 so there will undoubtedly be a strong focus on mediation to the exclusion other non-court dispute resolution processes. Why shouldn't any mediator32 or collaborative practitioner be able to offer MIAMs?

The availability of appropriate mediators is certainly an issue and it is one of the exemptions – the litigant is exempt if he/she has contacted at least three mediators (or all of them if there are fewer than three) within a 15 mile radius of their home and none of them is able to offer a MIAM in the next 15 working days. In addition to expanding the group of people who can offer MIAMs, how else can accessibility be improved?  The following options could be considered:

a. Although there is a requirement for MIAMs to be face to face meetings, to enable the mediator and client to connect more easily, the meetings could more routinely be undertaken by Skype or FaceTime. The more technically driven amongst the population could certainly benefit from a 21st century approach. The President of the Family Division spoke recently at the inaugural Young Resolution conference on 21 September about the need for us to embrace technology, and went on to say "When faced with the choice of opening a laptop in the kitchen, and talking to a judge via Skype; or running the gauntlet of travelling to a crumbling court building which may be many miles away – what do you think the litigant would prefer?"   So if the president is considering 'virtual' courts, surely virtual MIAMs could also become more commonplace.  For those less technically competent, mediators could be more flexible in their locations by meeting litigants at a location more accessible or convenient for them, perhaps at their solicitor's office by way of an example.

b. Age is also a factor in conversion rates from MIAMs to mediation. In those cases involving participants under 34 years of age, 63% converted to mediation, compared to 88% for those over age 5033.  It would follow then that greater tailoring needs to be done by the mediators themselves to ensure MIAM, mediation (and other non-court dispute resolution processes) take up and conversion are high in all age groups. 

The court
As stated above, the courts must consider at every stage in the proceedings whether non-court dispute resolution is appropriate34. Furthermore, if the court considers non-court dispute resolution is appropriate, it may direct that the proceedings are adjourned for such specific period as it considers appropriate to enable the parties to consider using non-court dispute resolutions and to enable it to actually take place35. So, to clarify, no one can be forced to mediate because the fact that mediation is a voluntary process remains one of its key principles. However, the court retains full control over the litigation process and its case management powers include the ability to adjourn the litigation with a view to encouraging the parties to resolve matters out of court.

However, the requirement to consider non-court dispute resolution at every stage seems to be honoured in its breach.  It seems from published statistics that the courts are permitting a wholesale avoidance of MIAMs. NFM chief executive Jane Robey contends that 'there is absolutely no evidence that courts are using their powers to direct people to attend a meeting with a mediator and instead the courts allow the system to remain clogged up when there are effective alternatives available'. 

FPR 2010 PD3A confirms that at allocation or at the first hearing the court should enquire about the exemption claimed, and review any supporting evidence in order to ensure that the MIAM exception was validly claimed36. That, according to the MoJ's 2015 research37 is simply not happening:

The writers suggest that a simple way of bucking this trend would be to strengthen PD3A and to refuse to list an application if the relevant sections on C100 or Form A are not properly completed.

In addition, the judges need to be stricter about enquiring whether any MIAM exemption has been validly claimed or not and, if it has not been claimed validly, adjourn the proceedings until the MIAM has taken place. The court already has this power38 and there have been cases where the court has used this case management power to adjourn the litigation39,but the judges are certainly not doing this routinely in practice.

The court could also go further and make an "Ungley order"40 which would force a party considering the case unsuitable for non-court dispute resolution to, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable. The judge can then consider the statement at the end of the case after the judgment has been given and when the question of costs arises. This would be a further means of encouraging parties to consider the possibility of non-court dispute resolution more seriously, but it is not an approach the family judges are used to taking, not least because of the general principle of no order as to costs in family cases. Perhaps the judges need to get tougher on parties who litigate for no good reason?

Another option would also be to ensure there are duty mediators present in the court building on the day of FDAs41 and FHDRAs42 to undertake MIAMs or, if possible/appropriate, give non-court dispute resolution another go.  The Family Mediation Association have according to their website been 'working with the courts to set up duty rosters at courts which will enable clients to make a MIAM appointment with a qualified family mediator straight away, if necessary'. Is this too late? On the basis that the majority of cases in the court process do not reach a final hearing, the answer has to be no.

Conclusion
As set out above, there are a myriad of factors contributing to the poor MIAM figures and participation in mediation. There needs to be a sea change in all aspects of family practice to resolve the problems and keep more families out of court.

Mediators need to be more flexible in their approach to attract the clients.

Solicitors need to better support their clients in preparing them for non-court dispute resolution at an early stage, through the involvement of therapists and family consultants, and progressing when the parties are ready. Solicitors can also normalise non-court dispute resolution processes so couples do not think they are embarking on something out of the ordinary or perhaps risky.

The judges also need to be more proactive and use their case management powers to better effect.

One of the greatest problems is mediation is not publicised. The general public understand the court system. The MOJ's 2015 report found that there was a 'need for marketing and provision of MIAMs and mediation to cater at least in part for different groups of potential litigants in children and finance cases, in terms of age and marital status' . There also needs to be more publicity about public funding still being available for mediation. A job for the government? Almost definitely.
____________________________________

Footnotes:
[1]   Family Procedure Rules 2010, rule 3.9(1).
[2]   Ibid rule 3.9 (2).
[3]   Children and Families Act 2014 section 10(1).
[4]   Family Procedure Rules 2010, Practice Direction 3A, paragraph 13.
[5]   Ibid, Practice Direction 3A, paragraph 12.
[6]   Ibid, rule 3.8.
[7]   Ibid rule 3.7.
[8]   Ibid, Practice Direction 3A, paragraphs 8 - 10.
[9]   Form FM1.
[10]  Children and Families Act 2014 section 10(1).
[11]  Ministry of Justice Family Court Statistics Quarterly, England and Wales, January to March 2017, published 29 June 2017.
[12]  Mediation Information and Assessment Meetings (MIAMs) and mediation in private family law disputes – Quantitative research findings. Ministry of Justice Analytical Series 2015 ('MOJ 2015').
[13]  Legal Aid, Sentencing and Punishment of Offenders Act 2012.
[14]  Ibid page 7.
[15]  Ibid, page 4. 
[16]  Ibid, page 4.
[17]  Law Society Gazette, 30 June 2017.
[18]  Ibid.
[19]  Family therapists, health professionals, financial advisers, Citizens Advice Bureau, the court and the internet, to name just a few.
[20]  Two mediators mediating together with the parties.
[21]  One mediator (the 'anchor') is involved throughout with an additional mediator involved as required. 
[22]  A process whereby each party has their own lawyer and everyone meets face to face to resolve matters, signing up to an agreement that they will not apply to court other than by consent and, if they do, new solicitors would have to be instructed.
[23]  A form of private dispute resolution in which you and your ex-partner appoint a fair and impartial family arbitrator to resolve your dispute. Since 18 July 2016  specifically trained arbitrators can adjudicate on private children disputes.
[24]  Resolution Manifesto for Family Law, page 13.
[25]  Family Procedure Rules 2010, Practice Directions 3A, paragraph 3.
[26]  Mapping Paths to Family Justice. page 32. 
[27]  Resolution Manifesto for Family Law, page 13.
[28]  Ibid, Practice Direction 3A paragraph 10.
[29]  As confirmed in the Mediation Information and Assessment Meetings (MIAMs) and mediation in private family law disputes – Quantitative research findings. Ministry of Justice Analytical Series 2015 (page 3); although the outcome of the mediation is a different matter. 
[30]  MOJ 2015 page 7. 
[31]  Family Mediation Council's guidance for all family mediation on initial mediation meetings, MIAMs and the signing of court forms, September 2016.  
[32]  I.e. all those who are qualified and working to accreditation.
[33]  Figure 4.9 of MOJ 2015.
[34]  Family Procedure Rules 2010, Practice Direction 3A, rule 3.3.
[35]  Ibid rule 3.4.
[36]  FPR PD3A Para 7.
[37]  MOJ 2015, page 36.
[38]  Ibid, Practice Direction 3A, paragraph 3.10.
[39]  Mann v Mann [2014] EWHC 537.
[40]  Named after the judge who first conceived the order and approved by the Court of Appeal in Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576.
[41]  First Direction Appointments in financial remedy cases.
[42]  First Hearing Dispute Resolution Appointment within private children cases.

Andrew Moore and Sue Brookes are
based at Mills & Reeve's Manchester office. Both are family lawyers, collaborative practitioners, and family mediators. Email: andrew.moore@mills-reeve.com ; sue.brookes@mills-reeve.com. Websites:  www.mills-reeve.com and www.divorce.co.uk

31/10/17