Mediation should no longer be the focus of divorce information meetings and they should be run by “generalist” lawyers and social workers as well as mediators, the president of the Family Division has argued.
Sir Andrew McFarlane said the mediation information and assessment meetings (MIAMs) that must be attended by people applying to the court to divorce, unless an exemption applies, were “not working as intended” and there was “a need to consider making changes”.
Delivering this year’s John Cornwell Lecture at the Family Mediation Association conference last week, he said: “My idea is that, if there is to be compulsion, the compulsory event should be attendance at an ‘IAM’ rather than a ‘MIAM’.
“That is, the meeting to which both parents should be required to attend should be with a generalist professional who can impart information [‘I’], guidance and advice [‘A’] more generally about parenting after separation, or, as it may be, resolution of financial issues.
“The advice would include basic neutral advice about the law and the legal structure.”
Sir Andrew said this advice should include a description of ‘what normal looks like’, along the lines of the ‘early interventions’ model, which provides “a set of widely available and judicially endorsed guidelines or templates” for the arrangements likely to meet a child’s needs in normal circumstances, depending on age and other factors.
“The professional conducting the IAM might be a mediator, a lawyer, social work[er] or otherwise have sufficient skill for the task.”
Sir Andrew said there should be the ability to refer parents to “any one of a range of local resources” and not just to “formal” family mediation.
Where there were domestic abuse or safeguarding issues, the IAM “could refer the matter immediately back to the court” and if mediation was to follow, it would be handled by a different mediator.
Sir Andrew said he had not “seen any data”, but it was his “firm understanding” that avoidance of the MIAM requirement “rather than being a one-off, is in fact typical of a large number of cases.”
He went on: “I fear that a culture has developed in the Family Court which accepts that the MIAM requirement is honoured more in the breach than the observance. If this is so, it requires addressing.
“The requirement for the applicant to attend a MIAM unless validly exempt is a statutory requirement.”
However, Sir Andrew questioned whether the term ‘mediation’ was understood by the “parent in the street”. Instead, he suspected that “for some” it was confused with conciliation, reconciliation or even marriage guidance.
“It may sound, to parents who may be angry, hurt and heavily defended as altogether too soft an option for them at that time. For others, mediation may be perceived simply as a ‘hurdle to jump’ before getting to court, and not as a serious route to a sustainable solution in its own right.”
He told mediators: “If I am right, the message of what you are offering is either not getting out there or it is the wrong message.”
Sir Andrew added that there had always been “a strong argument” for extending the MIAM requirement to both parties, which should be combined with a commitment from the HM Courts & Tribunals Service and the judiciary to hold parties to their statutory obligation to attend.
He said a group of judges, solicitors, barristers and mediators met over the summer to produce a report on improving the MIAM process. The report would be considered by the Family Procedure Rule Committee “in the coming weeks”.
The government has been investing in mediation for divorcing couples by providing £500 vouchers to help pay for sessions. Information about the scheme and how it works is provided to parties at their MIAM.
The Ministry of Justice announced in the summer that it would provide a further £5.4m to pay for vouchers, on top of the £3.3m it put in last year. As for June this year, more than 8,400 vouchers had already been used.