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Georgina's Blog

February 2020

Does Mediation Work?

The 'Does Mediation work?' question is something that is posed to me quite frequently. Up until now, I have only been able to go on the sketchiest of anecdotal evidence. However last month during National Family Mediation week - I do hope you didn't miss it? - the results of a survey came out. It found that in 73% of cases where Joint Mediation took place, partial or full agreement was achieved in the meeting. One might ask how long that agreement lasted in practice, and those statistics are not available, but 73% is an astonishingly impressive outcome given the number of couples you see who are entrenched in their own private battle and who can never imagine that 'he' or 'she' would ever compromise or consider mediation. Most people do not want to make life difficult for their ex, they are just trying to achieve what they think is 'fair' or 'right' and the best way to understand that is to be fully informed of the other person's perspective and rationale by talking to them. Mediation just facilitates that communication.

The other interesting thing that came out of the survey was that where both people attended the Mediation Information Assessment Meeting (MIAM), 73% (again!) went on to a Joint Meeting to try to resolve their dispute. The important word in that sentence was BOTH. At the moment, you cannot access the Family Court without at least attending a MIAM during which you hear what mediation can offer along with a discussion about what other options are available to you. The MIAM allows you to meet your mediator and assess whether you will be able to work with them and have confidence in them. It is often pivotal in switching clients from 'I want my day in court' mode to a more pragmatic and less destructive way at looking at the situation. More likely than not you will then hope that your other half will attend their MIAM so that you can proceed to a Joint Meeting. If they will not attend the MIAM - and at the moment that is their prerogative - the mediator signs the relevant page on the court form to say that mediation would not work in this particular situation and off you both go to the expense and upset of court. While I understand that mediation in and of itself is a voluntary exercise, attending a MIAM is not mediation. Sir Andrew MacFarlane, the President of the Family Division, despairs that the courts are full of unresolved cases of families in crisis and that many of these cases should not have gone to court in the first place. He goes so far as to say that the current volume of cases is "unprecedented, and on current resources, unsustainable". He places faith and hope in the mediation process as a way of securing some agreements, thereby saving the courts and the protagonists time and money while protecting children from the fallout of protracted legal battles. If everyone was really serious about this, the second MIAM would be obligatory too - and that way, as the numbers bear out, we would all see agreed child arrangements and financial remedy orders presented to the court to convert into an Order if that was required. Some judges do explore why a case did not go to mediation and will look more favourably upon the person who did go to the MIAM at least. But up until the point where both the people involved have to attend a MIAM before going to court, the Family Courts are going to remain inundated.