The fuller version of the Opinion column discussing whether we should follow the mediation information and assessment meeting (MIAM) model for family cases in England & Wales

The MIAM requirement applies to private law proceedings relating to children and to proceedings for financial remedies in matrimonial/civil partnership cases. There are exemptions in the case of evidenced domestic violence, bankruptcy and if there is a lack of authorised family mediators within a prescribed area from the applicant’s home. The rationale of prescribing a MIAM as a prerequisite in most cases is that parties to a dispute about children, finances or both can be fully appraised in advance about the process of mediation and can be helped to understand the “benefits” it can offer as a way to resolve disputes. The family mediator is a trained “facilitator” who can also discuss other forms of dispute resolution if mediation is not appropriate.

Kirsty Miguda (KAM): Alternative dispute resolution (ADR) is a positive option in many cases. In child-related cases, it sets the tone for parties to work together in the many years of co-parenting which often must follow. In financial cases, it allows parties to separate in a more amicable way and can save tens of thousands of pounds. Compulsory MIAMs compel parties to consider ADR as an option. They provide a filter which ideally should ensure that cases which are suitable for resolution by ADR are resolved by ADR.

Marjory Blair (MEB): I agree. Court is the last resort and should not be embarked upon unless other options have been fully considered. However, I am not in favour of prescriptive attendance at a MIAM. Scottish family lawyers should be discussing with their clients the broad spectrum of remedies available in any given situation. Following the breakdown of a relationship, clients embark on an emotional and practical journey, often through uncharted territory. Their needs and requirements change throughout that journey. What is impossible at the beginning (the thought of being in the same room as your former partner, let alone discussing money and arrangements for children) may become less contentious as time passes. Solicitors should always be mindful that ADR methods may be appropriate and should be considered at all stages in family cases. They are best placed to discuss ADR with their clients. They know the case and the issues. When a party contemplates litigation, all other non-litigious avenues ought to have been considered.

KAM: That is true. The issue is that although many solicitors support ADR, and the Law Society of Scotland requires solicitors to have a “sufficient understanding” of ADR options and encourages their use, neither of these compels consideration of ADR in every case. Some solicitors, particularly those trained in an ADR methodology, will provide a highly detailed breakdown of the options. However, there will be others who will not. As a result of this, cases which could be resolved by ADR will be slipping through the net, leading to (1) the negative effects of litigation on family relations and finances, and (2) unnecessary clogging up of the court diary. Therefore, some level of compulsion would seem to be required in order to ensure the consideration of ADR across the board.

MEB: I am concerned that merely ticking a box to confirm attendance at a MIAM is shoehorning consideration of ADR into a short timeframe; that may be counterproductive. Parties may be at their least receptive to information being imparted to them at the very point when they are contemplating litigation. They may feel the meeting is being forced upon them and only give it lip service. Solicitors have a continuing relationship with their clients, built up over a period of time. The client may be distressed, hurt, angry and worried about their future, at times in that relationship. Their solicitor is best placed to assess suitability for ADR, and to discuss both the benefits and the possible pitfalls at the appropriate time for the client, having regard to all the facts and circumstances of the case.

I think that an alternative suggestion would be to have some form of compulsory consideration with the client about ADR, and for the parties’ solicitors to make the assessment of suitability in advance of any proceedings rather than a family mediator being involved.

KAM: I agree that it may be introduced at a point when parties are not receptive to it. A compulsory assessment of suitability by the parties’ solicitors therefore could be a good solution. In most cases, the natural time for solicitors to discuss ADR with clients is at the beginning of the process; it would not, therefore, be a case of raising proceedings and then considering ADR but could be one of the first discussions entered into between the parties and their solicitors.

One consideration in that set-up would be that each solicitor would still be acting for their client, as opposed to the new system in England & Wales where it is an independent third party who decides whether mediation is suitable.

MEB: The use of the independent family mediator in England is of course subject to the parties engaging in the first place. There are all sorts of reasons why a solicitor is better placed to assess the suitability of a particular case for ADR. For example, there may be a disclosure of mental abuse to the solicitor but no evidence to exempt the client from having to attend a MIAM. The client may be elderly, with a long relationship of trust with the solicitor of choice; but more than that, why should the conduct of your client’s case be predetermined by a family mediator, regardless of whether the case is legally aided or privately funded? Surely it is the client and their solicitor who should be able to make that judgment.

KAM: That is true; there might in fact be more engagement if the MIAM was completed by the parties’ own solicitors. ADR, particularly mediation or collaboration in which the parties will be in the same room, could, at worst, be dangerous if parties felt unable to disclose real concerns about it to a mediator who was a stranger to them. The opposing argument, however, is that the parties’ solicitors will of course only hear one side of the story and be predominantly making a decision from that point of view, whereas an independent third party could objectively assess both sides before making a decision.

Another consideration if the MIAM was conducted by the parties’ solicitors would be that the mediators conducting the MIAMs in the England & Wales system are required to be “authorised family mediators”, whereas the vast majority of solicitors in Scotland are not mediators.

MEB: I don’t think that the solicitors require to be trained mediators in order to be able properly to assess whether mediation is appropriate for their client. Indeed I discuss arbitration and collaboration with my clients as well, albeit that I am not a trained mediator or arbitrator. We are making an assessment about what type of ADR may be appropriate for the resolution of a case or part of it, having regard to our client and the facts of the case.

KAM: The risk is disparities in solicitors’ knowledge of the different methods. It could be a case of introducing basic training in ADR into the Diploma or LLB courses to ensure that all solicitors start with the same baseline knowledge.

The Author
Marjory Blair is an associate and Kirsty Miguda a solicitor with bto solicitors, Edinburgh
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