6 out of 10 separations ignore the law and go straight to court – why it is important to mediate

phil hunterSince 06 April 2011, following the breakdown of a marriage, all couples were supposed to have considered mediation before turning to the court to settle disputes relating to their children or family finances. There has long been provision for exemption to this rule, including cases involving domestic violence or child protection issues, which would still go directly to court. This ADR step became mandatory in private law applications, following the implementation of the Family and Children Act 2013, making attendance at a Mediation Information and Assessment Meeting (MIAM) mandatory from April 2014.

Following a recent Freedom of Information request, National Family Mediation obtained data illustrating that 60% of separated couples still ignore their MIAM obligations. From some 89,886 private law applications to the family court, only 35,627 had correctly followed the MIAM process.

NFM conducted some very similar investigations two years after the 2013 Act came into force, which demonstrated that in the region of 22% of private law applications complied with the MIAM obligation. This was an improvement itself on the 2015 figures (7%) and so the trend is certainly moving in the right direction.

Nevertheless, NFM, who conduct over 35,000 MIAMs a year, queried whether solicitors are encouraging clients to exempt themselves from mediation and whether the courts are properly monitoring applications or using their powers to direct separating couples to attend a MIAM.

Certainly, there will be circumstances wherein ADR of any sort is sadly not suitable or available for a party in a particular case. This might, for example, be on grounds of geographical location or the urgency of the application in hand – exemptions will also be appropriate for some parties.

The benefits of mediation are widely familiar to all practitioners. For the uninitiated, in cases with successful mediation outcomes, agreements between parties are generally achieved quicker and at a lower overall cost to the parties. However, MIAM, mediation and in fact ADR in general, will not serve as a panacea to all disputes and the courts will always be required to operate as an institution of last resort.

NFM’s Freedom of Information request, processed by the Ministry of Justice in May 2017 also demonstrated that almost 73% of financial remedy applications did comply with the MIAM requirement (36,461 from a total of 50,261). Clearly, private law children applications are the stumbling block to improving the overall MIAM compliance picture.

In June 2017, CAFCASS reported their largest monthly increase in private law instructions for over three years, up 12% to almost 4,000 instructions to the month end. The latest data from the Family Court Statistics Quarterly further demonstrates the continued rise in private children law applications, which is up over 20% in just two years – (2015 Q1: 10,547, 2016 Q1: 11,515, 2017 Q1: 12,796).

In private law matters regarding children, the court has a duty not to delay under s.1(2) CA 1989 and so the idea of referring parents that are in dispute back to a MIAM attendance is not a particularly attractive proposition, but should the court “gatekeepers” be doing more to ease the congestion of cases currently faced by the court?

In the face of an ever-increasing demand for court services, at odds with court closures and the reduced resources available, is it right that the appetite of gate-keeping staff for a rigorous application of the MIAM obligations should be questioned? Decimating court resources will inevitably impact on the court service provided. This has now led to a prioritisation of the work that the court service can provide. The wider picture appears to reflect CAFCASS’ recent statement on the “Guidance of the use of Professional Time to Benefit Children” and the reduction in services being provided in the future.

Tacitly, it may be that MIAM compliance is overlooked by gate-keepers, simply attempting to operate a “light touch” service that their reduced resources will only currently allow. Solicitors and mediators alike, should continue to work hand in hand and bang the proverbial drum extoling the benefits of mediation to parties in dispute.

This article was written by Philip Hunter of Hunter and Uro Solicitors in London and Bedford.