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Mediation

What is Mediation?

Mediation is where an independent third party helps parents come to a voluntary agreement about arrangements for their children and finances at separation and after.

From 22nd April 2014 all potential applicants to court in relevant family proceedings will be expected to have attended a Mediation Information and Assessment Meeting before applying to court unless their case meets one of the exemption criteria. The court may refer the parties back to mediation at any stage of proceedings.

What are the exemption criteria?

You will be expected to attempt mediation unless:

  1. Domestic Violence: There is evidence of domestic violence (see our guide on Domestic Violence).
  2. Child Protection: There are child protection concerns (the child is subject to enquiries by the local authority or the subject of a child protection plan).
  3. Urgency: The application is urgent e.g. there is risk to life, liberty or freedom of the applicant and/or his/her family. An exemption may also be appropriate if delays would put a child at risk (e.g. in the case of unlawful removal abroad), cause the parties undue financial hardship or risk a significant miscarriage of justice. Where a case may be legitimately heard in a foreign country as well as in England and Wales, and the delay caused by attending mediation would make an application in a foreign court, an exemption to attend mediation may also apply.
  4. Previous attempts at Mediation: Where the parties have attended a mediation session or an exemption has been granted in the past four months related to the the same or similar matters.
  5. Disability and Access: Where one of the parties is disabled and the mediator lacks suitable facilities.
  6. Without Notice Applications: Where applications are made without notice (e.g. where the party applies to court asking for an urgent hearing that day). Examples of circumstances might include one parent refusing to hand over the child´s passport immediately prior to a foreign holiday or where there were immediate child protection concerns.
  7. Contact Details Not Known: Where the applicant does not know the respondent´s address or contact details.
  8. Prison, License or Injunction: Where one of the parties is in prison or subject to bail conditions which prohibit contact with the other party or subject to an injunction which prohibits contact with the other party.
  9. A Child is a Party to Proceedings: Where the child is the applicant or a respondent (as opposed to being the subject of proceedings).
  10. Distance and Availability: Where there are no mediators within 15 miles of the applicant´s home address or those mediators within this distance cannot offer mediation within 15 days.

The mediator may decide that mediation is no appropriate where:

  1. None of the respondents were willing to attend mediation.
  2. The respondents failed to attend the mediation session(s) without good reason.
  3. The mediator decides that mediation is unsuitable in relation to the issues in dispute.

What is the MIAM?

MIAM stands for the Mediation Assessment and Information Meeting. When you contact a mediator, they will arrange a meeting with you and the other party to discuss the issues in dispute and whether mediation may assist you.

If the Mediator believes mediation will not assist, or if mediation fails, and you later apply to the court for a Child Arrangements Order, Specific Issue Order or Prohibited Steps Order, the Mediator must complete and sign section 14 of the Courtís C100 Application Form to confirm why mediation was unsuccessful.

If you are applying for a parental responsibility order (or an order terminating parental responsibility), an order appointing or terminating the appointment of a Guardian, an order to change your child's surname, an order asking the court´s permission to remove the child abroad, a special guardianship order (or an order terminating the appointment), you or your solicitor must complete Form FM1 and (unless you are exempt from Mediation) the Mediator must also complete the Form FM1 to confirm that mediation is not possible. Such applications to the court would use Form C1 (rather than the C100 Application Form).

If the Mediator believes that mediation may assist you, they will explain the next steps. The MIAM usually lasts for 45 minutes.

What does Mediation cost?

There is no standard fee. Mediators are independent and will have their own charging structure. Shop around! The service may be free if you are on a low income. If you are using a solicitor, they should calculate whether you qualify for legal aid. A mediator can also help you find out if you are eligible to have legal aid cover this cost. You may also wish to visit the Community Legal Advice website or call 0845 345 4 345 to check whether you qualify for public funding.

How do I find a mediator?

Information on how to find a family mediator may be obtained from local family courts, from the Community Legal Advice Helpline - CLA Direct (0845 345 4345) or at www.direct.gov.uk.

You might also wish to use the National Mediation Council web site.

What should I do?

Download Family Mediation and Assessment Form.

Why consider mediation?

If successful, mediation will be cheaper than going to Court. Mediation stands the greatest chance of an agreement being reached where both parents are happy, and therefore causes less stress for all.

Mediation requires both parents to be able and willing to reach compromise, although a trained and skilled mediator might be able to assist that process.

Can I refuse Mediation?

Unless you have good reason (e.g. those listed in the Must I attempt Mediation? section) we recommend you do attempt mediation. The court will take note of your refusal to do so and may direct both parties to attempt mediation before court proceedings continue. This may result in delay and cause the judge to think you are ´difficult´ if they do not accept your reasons for refusal.

What does a mediator do?

Mediators can assist couples to communicate when they are separating and disagreeing about issues such as financial matters and where their children should live. Mediation can be carried out as an alternative to, or before, during or after court proceedings.

Family mediators can give general information about the law and the way the legal system works. They cannot provide advice about a person's legal rights or their best course of action, and can´t make decisions for you or give you legal advice.

Are agreements binding?

Mediated agreements are not binding in themselves. You may decide to apply to the court following an agreement having been reached via mediation, and ask the judge to make an ´order by consent´, essentially rubber stamping what was agreed. Bear in mind though that the judge must also believe that the order is in the children's best interest.

Questions to ask

When choosing a mediator, you may wish to ask the following questions at the first meeting or by telephone beforehand:

How much will mediation cost?
Do I qualify for legal aid? (If so, ask if the mediator does legal aid work... not all of them do)
How long do the sessions last?
Is there a waiting list?
Do I need to bring any information with me?

Mediation Package

We provide a free Mediation pack in our shop. This pack includes a printable hard copy of this guide, and Form FM1, and a leaflet on Mediation. FREE

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Michael Robinson © 2014

Family law information for parents whose children are resident in England and Wales

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.

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