Mediation Information and Assessment Meetings (MIAMs) were introduced in 2014 with the aim that potential applicants to court proceedings would not be able to apply without first having attended, and considered, resolving the dispute via mediation instead. However, over the intervening years, it has become evidence that for those who are hell bent on going to court, attending a MIAM is regarded as an optional hurdle on the way towards their ultimate aim.
Mediation Information and Assessment Meetings (MIAMs) were introduced in 2014 with the aim that potential applicants to court proceedings would not be able to apply without first having attended, and considered, resolving the dispute via mediation instead. However, over the intervening years, it has become evidence that for those who are hell bent on going to court, attending a MIAM is regarded as an optional hurdle on the way towards their ultimate aim.
The government has confirmed that it will not be continuing with the proposals for mandatory mediation. This has attracted a positive reaction, because although mediation can be of great benefit in some cases, it is not appropriate in every case. Although a change to the law to introduce mandatory mediation will not be made at this time, the requirement for parties to attend a MIAM before making an application remains, and some additional measures have been proposed to facilitate the effectiveness of such meetings.
What are the changes to the MIAM requirement?
The changes from 29th April 2024 seek to put MIAMs on a different footing. First, they limit and change the list of exemptions, making it much more difficult for prospective litigants to avoid attending a MIAM before being able to issue proceedings.
A further requirement has also been introduced for parties who have started proceedings to report to the court setting out their attitude towards resolving their dispute by way of “Non Court Dispute Resolution” (NCDR). This creates a framework for re-checking and re-considering the possibility of NCDR as the case progresses with the filing of NCDR forms at regular intervals throughout the proceedings. The rule changes also introduce a new power for the court to adjourn proceedings to allow the parties time to investigate NCDR without needing their agreement. Additionally, the costs rules have been amended to include the failure to attend a MIAM or NCDR as a reason to depart from the usual no order as to costs rule.
The exemptions for not attending a MIAM
There are fourteen exemptions the court accepts for not attending a MIAM/NCDR. These are:
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Domestic abuse
Victims of domestic abuse do not have to attend mediation. That said, if you are relying on this exemption, you will need to provide evidence to the court. Perhaps the other party was arrested for a domestic abuse incident or there are details of past criminal proceedings. Or you can obtain written evidence from a GP, hospital, domestic abuse organisation, or other professional body to confirm domestic abuse has taken place.
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Either party lives overseas
If either of you are resident outside the UK, you do not need to attend a MIAM/NCDR in person because physical attendance is problematic. However, the prospective applicant is now required to actively consider using video link instead. If the prospective applicant is not able to attend a MIAM/NCDR online or by video link, an explanation of why this is the case must be provided to the court.
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Not knowing where the other party lives
If you have taken reasonable steps to locate the other party and don’t know where they live, then it will not be possible to invite them to mediation.
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Previous attendance at a MIAM or Non Court Dispute Resolution (NCDR)
If you have attended a MIAM or NCDR within the last 4 months, you do not need to attend another providing the matter relates to the same, or substantially the same, dispute. The MIAM/NCDR certificate/form must be dated within 4 months, so if the date is outside this, then attendance would be necessary.
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There is a linked case already at court
If there is an ongoing case and you are submitting a supplementary or new application, you will not be required to attend another MIAM/NCDR. However, proceedings need to be active and live, so if the case has been closed, it will not count even if the same individuals are involved.
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An urgent hearing is required
The degree of urgency will be determined by the court, with such circumstances usually involving a risk of life or serious harm to the child. It can also be used if the child is about to be unlawfully removed from the UK.
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Child protection concerns
If the child concerned is subject to a child protection plan or the local authority is making enquiries into the safety of the child, then attendance at a MIAM/NCDR is not required.
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If the hearing is made without notice to the other party
Again, this revolves around the safety of the people involved, e.g., the children or one of the parents.
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Either party has a disability that cannot be accommodated in person
If either party has a disability preventing them from getting to a mediator in person, then the prospective applicant must provide the court with an explanation as to why they are not able to attend a MIAM/NCDR online or by video link. The prospective applicant must have contacted as many authorised family mediators that have an office within 15 miles of their home, or 5 of them if there are more, and all must have stated they are unable to provide such facilities.
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Either party is in prison or there are bail conditions
If one party is in prison and facilities cannot be made available for them to attend a MIAM/NCDR online or by video link. Whilst permission can be sought to mediate where bail conditions or licence terms exist not to contact the other party, it is nevertheless a valid reason not to attend a MIAM/NCDR.
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The applicant/respondent is a child
Mediation can only take place between adults. If the applicant or respondent is under 18 years of age, they do not have to attend a MIAM/NCDR, and the matter can go straight to court.
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Availability of mediator within 15 miles
If the prospective applicant is not able to attend a MIAM/NCDR online or by video link and there is no authorised family mediator with an office within 15 miles of the prospective applicant’s home, an explanation of why the exemption applies must be provided by the prospective applicant to the court.
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You are submitting a consent order
If you have both made an agreement and wish the court to make it legally binding, then you are not required to mediate because an agreement has already been made.
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You are making a claim for a financial order and either of you is about to be made bankrupt.
In this situation, mediation will not be suitable, so attendance at a MIAM/NCDR is not required.
Will it go against me if I refuse to attend mediation?
The conduct of the parties and demonstrating a willingness to compromise, mediate and resolve issues between you could be frowned upon if you decide not to mediate and the court believes you did not have a good reason for not attending a MIAM/NCDR.
The court has the power, without the parties agreement, to adjourn proceedings to given them time to investigate NCDR. Additionally, failure to attend a MIAM or NCDR without good reason may result in costs being awarded against you.
The bottom line from the family court seems to be that mediation should at least be attempted and entered into in good faith, and this new guidance seems to underline this stance.
If you have concerns about your divorce and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.
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