In an earlier article I have looked at parental separation and the methods by which parents can reach agreements as to the arrangements that will be put into place following that separation with their children and how such agreements would mean that it was not necessary to instigate Court proceedings.
In circumstances however where either the parents are unable to reach agreement between themselves or have reached agreement on a number of matters but cannot reach agreement on everything, then it is possible for them to make a referral for formal mediation.
Mediation
Mediation, of course, in its wider sense, is a negotiation which is undertaken with the support and assistance of a third party. For the purpose of this article however, I utilise the word mediation to mean mediation being conducted by a professional. There are a number of mediation services that may or can undertake this service on behalf of parents either directly or available online.
With changes to recent legislation, unless an application being made to a Court falls within one of a number of exemptions, the Court may in fact insist that mediation has been undertaken before the Court will consider an application further.
Mediation generally would mean that both parties meet together with a professional mediator assisting them to try to reach an agreement. Most mediation services would, at the conclusion of the mediation, provide a written document setting out the matters which were discussed and agreed between the parents.
MIAM (Mediation Information Assessment Meeting)
If a Court process is anticipated following the failure of a mediation to resolve the outstanding issues, the mediator can be invited to provide a specific form known as a MIAM (Mediation Information Assessment Meeting) form which should then be attached to a Court application to confirm that mediation has been undertaken and was unsuccessful.
Exemptions
One of the exemptions from having to go through mediation is circumstances where allegations of domestic abuse have taken place. That being said however domestic abuse does not always mean that mediation is completely inappropriate. A number of mediation services might undertake something known as “shuttle mediation” where the parties do not physically meet either face to face or virtually and the mediator meets with each individual parent and provides information to the other to see whether, as a result of the same, agreement can then be reached.
Most reputable mediation services should be fully alive and aware to the issue of domestic abuse and may themselves, following receipt of information, decide that mediation is not in fact suitable to that particular case and provide the MIAMs form then necessary for the Court proceeding.
In looking at mediation as a pre-requisite to Court proceedings, should one parent make the application for mediation and the other fail to respond or engage, then again the mediation services should normally be able to issue the necessary MIAM for the Court application.
The Court’s view
If a MIAM has been issued, the Court is likely to accept that for a period of about three to four months after its issue. Beyond that date a Court might take a view that the attempt at mediation was so far into the past that before proceeding with a Court application, a further attempt at mediation should be attempted.
It is right to say that most, if not all, mediation services will charge for their services albeit it may be possible for Legal Aid to be secured to assist with the costs of mediation and this is something that a reputable mediation service should know about and be able to advise whether the applicant or indeed the respondent to mediation is or is potentially eligible for and entitled to the grant of Legal Aid to cover the costs of that mediation.
Summary
Clearly, if the mediation reaches a successful conclusion then the parents will then be able to proceed with their child arrangements by agreement without the necessity of a Court Order. If not, then Court proceedings may be the inevitable next result. Again, however, as indicated previously, the more matters that can be agreed and the more limited the issues that have to be resolved through the Court process, the less traumatic, quicker and almost certainly cheaper the Court process would be.
An agreement reached in mediation is not enforceable through the court but can be produced to show what had been agreed previously.
If you have any questions relating to mediation and children process and would now like more information on the different types of proceedings relating to children, please get in touch and we would be happy to assist you by phone on 0345 450 5558 or by email at enquiries@stephens-scown.co.uk
This article is part of a series on Private Family Law and Children Law proceedings. If you would like to learn more about the rules around parental responsibility, contact, holidays and arrangements for separated parents, please click here for the full series.