Under current family law rules, anyone intending to apply to court is required to attend a Mediation Information and Assessment Meeting, commonly referred to as a MIAM, before making their application. But beyond this requirement, can someone refuse or be forced to attend mediation, and are any exceptions? Read on to find out more.
Do I have to go to mediation?
No one is forced to attend mediation, although MIAM attendance is a legal requirement. So if you want to make an application to court over a family related issue such as finances, children, or property matters, you will need to show the court that you have met with a mediator first by attending a MIAM. This is because the government believes that it is better for parties to sort these things out between them rather than the court telling them what to do.
It is important to note, that there is no mandatory requirement for either party to attend mediation beyond the MIAM appointment.
What is a MIAM?
Essentially, the purpose of the MIAM is to provide information about how parties might be able to resolve their disagreement without going to court and figure out whether mediation is a safe way for parties to sort out matters quickly and effectively.
At the MIAM, both parties are spoken to separately and informed of the process, benefits, and costs of the full mediation process. The mediator will also discuss the parties concerns and their priorities with the aim of setting an agenda for areas to be negotiated. All discussions will take place separately until it is accepted that it is safe for a meeting to take place together.
Together with the mediator, both parties must agree that mediation is suitable. It will not take place until an agreement to mediate is in place and signed by both parties. This reinforces the voluntary nature of the process. However, mediation is not suitable in every case, so to that end, there is a list of exemptions where a MIAM or full mediation is not considered suitable.
What are the MIAM exemptions?
There may be overriding factors which mean that a court does not consider attendance at a MIAM suitable. The exceptions are:
- Domestic violence/child abuse
- You need an urgent hearing
- Child protection concerns
- If the hearing is due to be made without notice (emergency application)
- One party has a disability that cannot be accommodated
- Either party is in prison
- The respondent is a child
- You are submitting a consent order
- Bankruptcy
- You don’t know the whereabouts of the other party
- There is a linked case already at court
- Either party lives abroad
- Unavailability of a mediator within a specified area or timescale
- A MIAM was attended by either party in the four months before making the application.
If there is no evidence which satisfies the domestic violence exemption criteria, the MIAM incorporates risk and safety screening, although this is not on the same scale as that of CAFCASS, who can access the police national computer database. A mediator can decide that mediation is unsuitable for reasons of domestic abuse, even if the individual cannot meet the evidential requirements.
Why do I have to mediate?
You are not forced to mediate, but you need to demonstrate to the court that you have at least considered mediation by attending the MIAM. This is because the courts want to know that you have attempted to resolve the issues and, in doing so, have acted reasonably and responsibly.
If the judge believes it would be better for both parties to try to reach an agreement via mediation, they can adjourn the case for a few months, whilst mediation takes place. This direction can be made at any stage of the proceedings, with the judge sometimes providing an indication of the order they would make. They will then ask you to go away and mediate on the details.
If you are directed by the judge in the way described above, you still do not have to do it. This is because one of the five pillars of mediation is that it is always voluntary. However, the judge would need to know why you have not done as they suggested, and your conduct may be considered when it comes to awarding costs.
Will it be held against me in court if I refuse to attend mediation?
As stated throughout this article, mediation is a purely voluntary process, and no one will make you attend against your wishes. The court may question your reasons for not attending because of its expectation that you will at least explore the option. Whether non-attendance will be held against you, it is important to distinguish between refusing to attend a MIAM, which is a legal requirement for making an application, and the full mediation process.
A decision not to attend a MIAM before making an application is likely to have implications on how the judge views your case. That is, unless you are excused from attendance under one of the exemptions. In financial cases, judges are increasingly making orders whereby if someone refuses to attend a MIAM, they may be ordered to pay some, or all, of the other party’s legal costs unless they have a good reason not to attend.
The message from family courts is that mediation should at least be attempted and entered into in good faith, unless the family mediator considers the case unsuitable or one of the exemptions covered above applies. If you are unsure whether mediation could be helpful in your case, speaking to a mediator may help you understand more about your options. You may be able to bring a support person with you if you feel overwhelmed by the prospect, such as a friend or family member, to help you stay focussed on your goals. It is also important to remember that you always opt out of the process if you feel it is not working for you.
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