Mediation works best when a case is under way (from Solicitors Journal)

From my latest Solicitors Journal column “Family Business”, 13/5/2014

Can compulsory attendance of separating couples at MIAMs reduce the burden on our congested courts, asks Marilyn Stowe

Something has to be done to reduce our overcrowded courts. The received wisdom appears to be that if the MoJ now obliges everyone to attend a mediation information and assessment meeting (MIAM) then separating couples will learn about alternative out of court methods of dispute resolution.

One immediate downside is that the respondents can’t be forced to attend because there is no mechanism to compel them. There is no application before the court. It could prove to be an additional bureaucratic waste of money to an anxious would-be litigant.

The over population of the courts system by litigants in person has led to the erosion of lawyers from the courts. Courts need lawyers to function, remove them and the courts get clogged up with people who’ve got no idea what they’re doing yet are seeking an outcome one way or the other, as is their right in our democratic society.

Compulsory attendance at a MIAM isn’t new. Figures from 2012 to 2013 show that of the compulsory attendances of MIAMs (when legal aid was freely available), 80 per cent of couples didn’t take up mediation. Although mediation remains publicly funded, many do not see it as a better alternative than the court. (According to the MoJ, there were 1,173 mediation starts in November 2012 compared with 665 in November 2013: a 43 per cent fall. Between April and November 2013 the total number of mediation starts fell by 36 per cent, compared with the same period in 2012.)

Perhaps the figures may change with greater awareness of out-of-court dispute resolution alternatives now that MIAMs have statutory force.

I am not against mediation; I trained as a mediator 20 years ago. I’m also an arbitrator and we have a full range of out-of-court dispute alternatives in our practice, including the ability to conduct a MIAM at all our offices.

However, mediation is not an alternative to law. It has its downsides: it is not compulsory, it requires consensus between the parties and it may fail without an outcome. But if it works, it will encourage a better relationship.

My view is that it fails at the entry point because it is considered as a possibility far too soon. Parties aren’t in the right zone to mediate calmly, rationally and sensibly.

Mediation works best once a case is under way: when there has been an exchange of positions, documentation and minds are focused, there is an acceptance of the new reality and that’s the right point to expect resolution.

So, if mediation isn’t necessarily going to be the great panacea, in reality I’m guessing these changes will actually mean a seismic shift from the vast majority of work being done by the county court to the lay justices instead, as it used to be when I was newly qualified 30 years ago. Will this be for the public good? Time will tell.

This article was first published by Solicitors Journal, and is reproduced by kind permission