• THE NEW MIAM REQUIREMENT - A GUIDE FOR CLIENTS AND REFERRERS

    28.04.14

    BACKGROUND INFORMATION

    • A MIAM is a Mediation Information and Assessment Meeting. It is a 30 to 45 minute meeting with an accredited mediator during which the role of mediation is explained and questions about mediation answered.  It is also an opportunity for the client to find out about all dispute resolution options and eligibility for legal aid for mediation.  It provides an opportunity for the mediator and the client to discuss suitability for mediation.
    • Unlike many mediation services, at Laceys Mediation the MIAM is totally free of charge at all of our offices (Bournemouth, Poole and Southampton).
    •  The Children and Families Act 2014 makes it a requirement for a person to attend a MIAM before making certain applications in family courts.  It states that the Respondent is also expected to attend a MIAM.  It also gives the court a general power to adjourn proceedings to enable mediation to be attempted.
    • A person must attend a MIAM before applying to court unless: They can say that a MIAM EXEMPTION applies; or a mediator signs the form to confirm that a MEDIATORS EXEMPTION applies.
    • The MIAM requirement applies to most applications for child related orders (now called Child Arrangement Orders) other than public law / care proceedings.  It will also apply to applications for financial orders on divorce.

    WHAT CLIENTS NEED TO KNOW ABOUT LEGAL AID

    1) Legal aid for court proceedings is only available in very limited cases –Essentially these are serious DV or child protection cases but  if clients want to know if they fall within one of those limited cases the should take their own legal advice or more information on this can be found at www.justice.gov.uk/legal-aid-for-private-fmaily-matters

    2) Legal aid is available for Family Mediation (subject to financial eligibility) – not all mediators offer this but we can and we offer free appointments to assess clients for eligibility.

    3) There is some legal aid available for clients who are mediating to get free legal advice from a solicitor as part of this process.  However clients must have attended their first mediation session before they can sign up with a solicitor for this and not all solicitors offer this option. 

    WHAT WILL HAPPEN WHEN A COURT APPLICATION IS MADE:

    1) When a client makes an application, in their actual application form (C100 for most child arrangement orders,  or Form A for financial remedy on divorce),  they are required to either claim a MIAM Exemption or they must have had the form signed by an accredited Mediator following a mediation referral.  All Laceys mediators are accredited to sign these forms.

    2) If they try and issue an application without having complied with 1) above, the counter staff will refuse to issue the application.

    3) Once the application is issued, the file will be passed to a Gatekeeping Judge – this judge will make a decision as to whether the client has complied with the MIAM requirement.  If the client has claimed a MIAM exemption but the Judge does not feel it was validly claimed he can make an order that the party attend a MIAM prior to the first hearing (NB by then the client will have already paid out for the court fee so it makes sense to attend the MIAM before paying out this fee).

    4) At the first hearing, if the parties still have not attended a MIAM and the Judge decides they ought to, he can adjourn the proceedings and order them to attend within 15 business days.  The Judge can also ask to see any evidence to support the party’s claim that a MIAM exemption applies.

    5) The Judge had an ongoing duty to consider mediation throughout the case.

    CLIENTS NEED TO BE AWARE THAT FAILURE TO COMPLY WITH THE MIAM REQUIREMENT COULD CAUSE DELAY ONCE THE MATTER GETS TO COURT AND THAT THE JUDGE CAN ORDER THEM TO ATTEND AT THIS STAGE, AFTER WHICH TIME THEY WILL HAVE ALREADY INCURRED LEGAL FEES AND COURT FEES – THEREFORE THERE IS LESS RISK INVOLVED IF THE CLIENT ATTENDS THE MIAM AT THE OUTSET

    RESPONDENTS TO APPLICATIONS

    The court will expect the Respondent to an application to attend a MIAM as well as the Applicant.

    MIAM EXEMPTIONS

    If a client wants advice on whether their case falls within a MIAM exemption they ought to speak to the court office for guidance, or go to a solicitor for legal advice.  Due to our need to remain impartial we cannot advise clients as to whether or not a MIAM exemption can be claimed, particularly given that the final decision on this will rest with the Gatekeeping Judge.  What we do say however, is that there is less risk and no cost involved in the client attending the MIAM and complying with the requirements, rather than trying to claim an exemption and getting it wrong.  Attendance at a MIAM complies with the requirements even if the client then chooses not to go ahead with mediation.

    MIAM exemptions are listed on the relevant application form the client would be completing for court and some of the exemptions may require production of specific and detailed supporting evidence at the first court hearing.  

    The main MIAM exemptions:

    • DV exemption (specific evidence required and time frames apply )
    • Child Protection exemption (specific evidence required)
    • Urgency
    • Previously attended MIAM in last 4 mths
    • Insufficient contact details for Respondent to enable contact to be made
    • Without notice applications
    • Disability or other inability that would prevent them attending a MIAM unless mediator can offer appropriate facilities
    • Applicant or Respondent in prison or subject to bail conditions or licence
    • Applicant or Respondent not resident in UK
    • Child is a party
    • Tried 3 mediation services within 15 miles and none can offer appt within 15 business days
    • No mediation service within 15 miles
    • Bankruptcy

    MEDIATOR OPTIONS ON THE MIAM FORM:

    As mediators we can complete the client’s application form by ticking one of the following:

    • The applicant has attended a MIAM
    • Not suitable for a MIAM because Respondent is unwilling (we will write to and try to telephone the Respondent, giving them 14 days to respond)
    • Not suitable because Respondent has failed, without good reason, to attend a MIAM
    • Mediation otherwise not suitable (based on Mediators assessment and decision)
    • Mediation took place but broke down
    • Mediation took place but failed to resolve all issues

    THE FORMS FOR MEDIATORS TO SIGN:

    In most cases the Mediator needs to sign the client’s actual court application rather than a stand alone document.  If the client is making an application on form C100 (children) or Form A (financial remedies) the mediators section for signing forms part of that application itself and the client will need to provide this form to us.  The form is available from the court office, the client’s solicitor, or the court website (see link below).

    If the client is making an application on form C1 or C2, both of which relate to child proceedings, the mediator completes a stand alone FM1 document which we have supplies of – but these forms will not be the norm.

    Unless the client has attended a MIAM and provided evidence of eligibiluty for legal aid, we will usually charge an admin fee of £30 for signing the form, but the MIAM itself remains free of charge at Laceys.

    The mediator’s assessment of suitability for mediation remains valid for 4 months – after that time the court may insist on a new referral to consider mediation being made.

    USEFUL  LINKS FOR CLIENTS

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