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Is it time to put an end to the MIAMs farce?

As the reader may know, back in 2014 the Government introduced a requirement that anyone wishing to make an application in, or to initiate, family proceedings, had to attend a Mediation Information and Assessment Meeting (‘MIAM’), before making the application. Thus, for example, if you wish to make an application for a child arrangements order then you should first attend a MIAM. MIAMs had actually been around since 2011, but only in 2014 were they made compulsory unless an exemption applied.

The purpose of the MIAM is, as its name suggests, to provide you with information about how mediation works, and to assess whether your case is suitable for mediation. The Government’s idea was that more family disputes should be resolved in mediation rather than in court, thus mitigating the effect of the removal of legal aid for most private law family matters the previous year, legal aid being still available for mediation.
So basically the hope was that mediation would replace all those expensive legally-aided contested court cases or at least a large proportion of them.

So what has happened since 2014?

Well, it has not been a pretty sight for the Government. After an initial rise, the number of MIAMs has been steadily falling each year. And the number of mediation starts (i.e. cases where the parties have begun the actual mediation process) has plummeted.

The latest statistics, published by the Ministry of Justice and the Legal Aid Agency, show that MIAMs decreased by 7% during April to June 2018 compared to same quarter last year, and now stand at just over a third of the levels they were at prior to the abolition of legal aid (when it will be remembered, they were purely voluntary). Mediation starts did not decrease during that period, but they are now running at just under half of the levels they were at before legal aid was abolished, as are mediation outcomes, which also decreased by 7% during that period.

That last figure, for mediation outcomes, is clearly the best indicator of the success or otherwise of the whole concept of mediation as a ‘replacement’ for court proceedings. And the figures are pretty dismal. In that quarter, out of 1,610 mediation starts, there were only 983 successful agreements. Compare that paltry figure to the total number of family cases started in that quarter: for just private law children and financial remedy applications alone they came to some 23,000.

And the irony is that the primary reason for fewer mediations is those legal aid cuts. Before the cuts, a large number of referrals to mediation were made by solicitors, who believed that their cases were suitable for mediation. Now, of course, far fewer cases even have a solicitor involved. In their haste to remove ‘expensive’ lawyers from the process, the Government has unwittingly put a huge hole below the waterline of their flagship mediation policy.

Clearly, the whole idea of MIAMs has become a farce. Whereas (for example) in the first quarter of 2013, just before legal aid was abolished, there were 9,267 mediation assessments, that figure was down to just 2,584 in the quarter April to June this year. The system is clearly being ignored by the vast majority, which obviously puts the law into disrepute.

It is about time the Government acknowledged defeat and did away with the ‘requirement’ to attend a MIAM. The simple fact of the matter is that, like it or not, the vast majority of litigants, especially those without lawyers, do not want to go through mediation, and see the MIAM as a waste of time. The requirement is, therefore, being ignored.

Of course, the real answer to all of this would be to reinstate legal aid, but I’m afraid I can’t see that ever happening. The Government has created a two-tier legal system, for those who can afford lawyers and those who cannot, and its big idea to help the have-nots has failed, but it is not prepared to put right its mistake.

The latest mediation and MIAM figures can be found in the Legal Aid Statistics quarterly for April to June 2018, which you can read here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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