People only ask the above question when they are convinced they should be going to court. They feel that a Mediation Information and Assessment Meeting (MIAM) is just another thing preventing them from getting what they want. Or they are the respondent, who is being lead unwittingly toward the court.
By trying mediation, a couple has nothing to lose and everything to gain, starting with their self-respect.
The answer of course, is yes, you can refuse. Mediation in the UK is still voluntary. A mediator cannot work with reluctant participants who are unwilling or unable to listen and engage with the other partner. However, the real question is: ‘Should you refuse and what are the consequences if you do?’
Family mediators have two very different roles in the family law process. Their main function as a mediator is facilitating and working with separating couples to help them find a way to agree how to co-parent, separate their finances and assets and making sure they both have somewhere to live and the money to make those proposals work. People who engage in this process will work hard with a mediator to sort out their difficulties.
The other role for an Authorised Family Mediator is to see the prospective applicant (and invite and encourage the respondent) so they can hear more about their dispute resolution options before they make the court application. This can and, in my view should, be seen as an opportunity to put a break in the spiral of conflict which so often surrounds and takes over when couples separate. The mediator sits down separately with each client and tells them about all the different methods people use to decide what will happen to their assets and children. A mediator cannot force someone mediate or sit in the same room with the other person and talk. The mediator informs each person about the process of mediation and where it fits in family law.
So often the history of conflict, the reasons why the relationship broke down, makes everything too raw and too personal. The couple have seen each other as vulnerable, hurt, angry and scared. They also know about each other, will often accuse each other of lying, being vindictive or just out to hurt the other person. With that back-drop what is the point? Most people have probably never been in such a toxic relationship breakdown before. By trying mediation, a couple has nothing to lose and everything to gain, starting with their self-respect. If a couple can separate with dignity they give their children a good future and they save money. Aviva reported in 2018 that in 4 years the cost of legal fees has more than doubled.
To put the family court process and the requirement for a MIAM into perspective, only a very small number of family disputes end in a contested court hearing. How many of the potential cases are diverted from the court after the MIAM process is hard to tell because the best result is a Consent Order. The National Audit Office reported in 2014 that the average cost and time of mediated outcomes was significantly less than using other methods. Money and time which could be better spent re-building lives and moving forward.
If a court application is made without attending a MIAM a person may find their case is adjourned[i],, pending a MIAM, causing a delay they did not want. If the respondent does not attend they are losing the opportunity to stay in control. Most family mediators can give couples a real insight in to what the court process is like. As soon as the application is received, the court takes over the case management[ii]. The couple’s control over the outcome diminishes.
Going for a MIAM works because it gives the couple an opportunity to realise that they need to resolve the problem. They can do it with a mediator and they can get what they want: an end to the conflict, a fair financial settlement and happy life for their children.
[i] Under section 10(1) of the Children and Families Act 2014, it is now a requirement for a person to attend a MIAM before making certain kinds of applications to obtain a court order. (A list of these applications is set out in Rule 3.6 and in paragraphs 12 and 13 [of the Act].) The person who would be the respondent to the application is expected to attend the MIAM. The court has a general power to adjourn proceedings in order for non-court dispute resolution to be attempted, including attendance at a MIAM to consider family mediation and other options.
The first hearing
In both public and private law cases, the first hearing may take place before a fully constituted court or, where only case management issues are to be decided, before a single magistrate or a legal adviser. It may be possible for the court to deal with the case at the first hearing. If this is not possible, a number of important questions must be decided. The first hearing can set the course of the case. The court’s role as case manager starts here. Interim orders, until the matter can be finally resolved, may also have to be considered here. Such orders may have to be made at any stage throughout the proceedings.”
Posted on February 5, 2018