Do MIAMs work?

Are pre-court mediation intake assessment meetings - MIAMs - increasing the number of cases we actually mediate or are they a pointless pre-court procedure? According to the freedom of information search conducted by National Family Mediation recently, only one in 20 court applications have been preceded by a MIAM anyway. Does it matter?

Along with many mediation services we use the ResolvIT case management designed to manage family mediation cases and data. This enables us to analyse the number of cases opened each month, the number of cases where two assessments or a joint assessment take place, and the number of mediation starts.

I printed out case conversions reports for the period 1 April 2013 to 31 March 2014, when there were no compulsory MIAMs before court proceedings could be issued, and made a comparison with for the following years where MIAMs were compulsory before a court application can be made (see table below). This helps us see if compulsory MIAMs have increased mediation takeup, as we take the view there is no earthly point in MIAMs if they do not produce more mediation. 

These figures do show that MIAMs are working well to divert a significant proportion of cases from court to mediation. Whilst we are seeing a decline in the double or joint assessments that lead to mediation starts, it is, interestingly, not huge.

That may be partly our attitude to MIAMs and our practice of treating every client and case the same. We do not offer cut-price token online or telephone MIAMs along with the court form and lawyers know we want to mediate and not just do mediation assessments or MIAMs, so this may affect our referrals. However some people just seeking the MIAMs certificate, when they hear about mediation, do choose to mediate, if not immediately, and they may return later in their proceedings.

All in all the statistics show that MIAMs are useful in creating understanding about the possibility of resolution in mediation and in increasing mediations. The downside of the current procedure is the significant number of single MIAMs meetings.

However if pre-proceedings MIAMs were removed nothing else will serve that function and we will definitely revert to the situation we had before MIAMs became compulsory – with far fewer mediations and an increase in court proceedings. This would be a retrograde step.

The key to getting people to start mediation is seeing both clients and we do our best to do this.

We are now trying to identify the impediments to more mediation starts, apart from the accepted reasons for unsuitability such as domestic abuse and violence, lack of capacity and so on. Clients answer variously that:

• Their ex won’t engage unless compelled by court;
• The other party won’t be reasonable and the judge will have to decide;
• Compulsion is needed (especially a problem in children matters, where the ‘no order’ presumption makes some parents feel vulnerable to capricious control by the other parent);
• They just want to go to court
• Their solicitor has said their case is unsuitable for mediation and they just want the form.

Sometimes when the first party hears about mediation at their MIAM they persuade the other person to come to a MIAM too and some start mediation. A MIAM can result in a mediation start after proceedings have been issued, so the MIAM bears fruit later.

If the compulsory MIAM prior to proceedings is removed, it is clear many more cases would go to court and many others would stay there, as neither party will normally have heard about mediation or will think it cannot work for them.

If we ask what should happen next I’d say that court administrators should reject applications without a valid MIAMs certificated by an FMCA-registered mediator. If we ask the critical question, why is mediation to be preferred to court? Then the answers are legion.

I will not enumerate them here, but they may be summed up in the premise that mediation produces better outcomes for families.

Mary Banham-Hall, is the head of Focus Mediation Ltd, and a solicitor. She has recently published a factual-fiction novel, Love Lose Live: Divorce is a Rollercoaster