Opinion: Marjory Blair and Kirsty Miguda
Should we follow the MIAM model now being introduced in England & Wales, or is there an alternative way to ensure consideration of ADR in family cases?
The MIAM (Mediation Information and Assessment Meeting) requirement, introduced in England & Wales by the Children and Families Act 2014, applies in private law children’s proceedings and proceedings for financial remedies in family cases. There are exemptions in cases of evidenced domestic violence, bankruptcy, and if there is a lack of authorised family mediators within a prescribed area round the applicant’s home.
The rationale of prescribing a MIAM as a prerequisite to proceedings in most cases is to ensure that parties to disputes about children, finances or both can be appraised in advance about the process of mediation and helped to understand the “benefits” it can offer as a method of resolving disputes. The family mediator is a trained facilitator who can also discuss other forms of dispute resolution if mediation is not appropriate.
Alternative dispute resolution (ADR) is a positive option in many cases. In child-related cases, it sets the tone for parties to work together for future years of co-parenting. In financial cases, it helps parties separate in a more amicable way, and can ameliorate costs. Compulsory MIAMs compel parties to consider ADR as an option. They provide a filter which should ensure that cases suitable for resolution by ADR are resolved by ADR.
Litigation should not be embarked upon unless other options have been fully considered. However, should there be prescriptive attendance at a MIAM?
Family lawyers should consider the broad spectrum of remedies available in all cases and discuss these with their clients. Whilst many solicitors support ADR, and the Law Society of Scotland requires solicitors to have a “sufficient understanding” of ADR options, encouraging their use, there is no requirement for consideration. Some solicitors, particularly those trained in an ADR methodology, will consider the options, but others will not. Therefore, cases which could be resolved by ADR will be missed, leading to the negative effects of litigation on family relations and finances and pressure on the courts. Some level of compulsion would ensure consideration of ADR across the board.
But ticking a box to confirm attendance at a MIAM could be shoehorning consideration of ADR into an inappropriate timeframe, and could potentially be counterproductive. Parties may be at their least receptive to ADR possibilities at the very point when they are contemplating litigation. They may give it only lip service, knowing it is compulsory.
Following the breakdown of a relationship, clients embark on an emotional journey, often through uncharted territory. Their needs and requirements change throughout that journey. What seems impossible at the beginning (being in the same room together, let alone discussing money and arrangements for children) may gradually become less contentious. Solicitors have an ongoing relationship with their clients. There may be a disclosure of mental abuse to the solicitor but no evidence to exempt the client from attending a MIAM. The client may be elderly, with a long relationship of trust with the solicitor of choice. Why should the conduct of your client’s case be influenced by a family mediator? Arguably, solicitors are best placed to assess suitability for ADR and to discuss at appropriate times the pros and cons of the processes with their clients, having regard to all the facts and circumstances of the case.
An alternative would be compulsory consideration of ADR by the parties’ solicitors, taking place at any time before proceedings are raised. In such a system, solicitors would still act for their clients, as opposed to the England & Wales system where an independent “authorised family mediator” decides whether mediation is suitable – if the parties engage in the first place. We suggest that this would lead to more receptiveness to ADR by clients. ADR that requires parties to be in the same room could, at worst, be dangerous if parties felt unable to disclose real concerns to a mediator who was a stranger to them.
In England & Wales, MIAMS are conducted by “authorised family mediators”, whereas the vast majority of solicitors in Scotland are not mediators. We suggest that solicitors don’t have to be trained mediators to assess whether mediation is appropriate for their client. It is an assessment about what type of ADR may be appropriate for the resolution of a case, or part of it, having regard to the client and the facts of the case. Disparities in solicitors’ knowledge of ADR methods could be addressed by introducing training in the degree courses and requiring attendance at CPD courses on the subject.
Marjory Blair is an associate and Kirsty Miguda a solicitor with bto solicitors, Edinburgh
A fuller version of this article is available here.