A CHRONOLOGY OF COMPULSORY FAMILY MIAMs  

A few acronyms explained: 
 
MIAM – Mediation Intake Assessment Meeting and its former incarnations 
L/A – legal aid; LAA – Legal Aid Agency and its former incarnations 
FoI – Freedom of Information search 
FM1 – Form confirming what MIAM has taken place or mediation has broken down – was passport to L/A and theoretically required for court application to be made 
LIPs – Litigants in Person 
LASPO – Legal Aid, Sentencing and Punishment of Offenders Act 2012 
 
Date 
Event 
Effect 
1. 
1997 
Pre compulsory MIAMs c 4-600 private mediations p.a. England and Wales 
Virtually no mediation 
2. 
1998 
Most L/A clients must see mediator before getting L/A 
Many choose to mediate L/A mediations rise to c 13-14,000 p.a. few private un-numbered 
3. 
1998 -2011 
L/A mediations steady - cost LAA approx £16m p.a. 
Relatively few private mediations 
4. 
2007 
National Audit Office Report into Family Mediation 
Says some lawyers prevent people mediating as have contrary interest to earn fees 
5. 
2011 
MoJ introduces compulsory MIAMs for all family applicants includes private/non L/A 
Initial massive increase in mediation 
6. 
2011-2012 
Realisation pre issue requirement for non L/A MIAM failing as courts don’t check 
Private mediation declines; L/A mediation steady as MIAMs enforced by LAA pre issue L/A 
7. 
31/03/2013 
LASPO 
No L/A for family applications end of L/A MIAMs. Private MIAMs still not enforced 
LIPs and court applications rocket to record levels as no pre issue advice or mediation filter 
8. 
31/4/2013– 1/03/2014 
Vacuum Yr 
No compulsory MIAMs at all so Mediations collapse and court apps rise 
Mediation collapse. 
Mediations services close. 
More people litigate 
9. 
In 2015 
FoI search 
Spend on L/A mediation collapsed to under £9m post LASPO (was c £16m pa) 
10. 
1/04/2014 
Advent of supposed beefed up requirement for all family court applicants to attend MIAMs 
Rise in referrals to mediation lead to more MIAMs and so more disputes are mediated 
11. 
2015 
No one checking for FM1s in court system 
Lawyers and applicants issue without MIAMs, more crt apps 
12. 
Nov 2015 
FoI search initiated by the National Family Mediation (NFM) 
FoI shows only 1 in 20 family court applicants is attending a MIAMs – no one is checking or enforcing 
13. 
Now 
Pre issue MIAMs failing 
Less family mediation and more court apps 
14. 
Now 
Some family clients self-refer to mediation; many bypass it 
Without compulsory MIAMs being enforced there are less mediations and more crt apps 

A BRIEF ANALYSIS OF THE CHRONOLOGY 

Mediation reduces court applications and legal costs 
 
Mediation Intake Assessments or MIAMs are critical to disputants understanding how mediation can help them and to diverting some cases from court and settling them in mediation. Without compulsory MIAMs court applications increase, see Chronology. However, proceedings may be needed to compel the engagement of reluctant Respondents via MIAMs. Pre-issue mediation saves the most costs and referring litigants to mediation once joint costs reach 20% of value would settle another cohort of cases. 
 
Without compulsion there is less mediation and more court applications. What we know from the National Audit Office Report into Family Mediation 2007 
 
“Mediation is faster, cheaper and less adversarial than the courts – it is the duty of legal advisers to tell clients about mediation, but they have a financial disincentive to do so and many bypass it.” 1/3 clients interviewed by the NAO had not been told about mediation by lawyers – of which 40% said they would have tried it. 
Mediated L/A case 
 
Non mediated L/A case 
£754 
Average Cost 
£1,682 
110 days 
Duration 
435 days 
The NAO concluded the Legal Services Commission should promote mediation. NAO added, “Legal Services Commission expects clients to mediate where possible but some solicitors dissuade and prevent people mediating.” 
 
“My solicitor never mentioned mediation – I got a letter saying I’d declined it – when I asked about it I was told it was another standard letter and to ignore it” 
 
“My solicitor wrote to my partner’s solicitor asking for mediation but they refused and said it would not work” 
 
“The mediator tries to engage the parties but 12% of applicants (for legal aid) and 44% of their partners were unwilling to mediate” 
 
“In Australia, NZ, Norway and parts of US and Canada, family mediation is compulsory. In UK and most of Europe it’s voluntary but encouraged. In Sweden 90% of separating couples use it.” (The NAO Report summary ends here). 
 
The chronology above shows where there are compulsory MIAMs there are more mediations and where there is no compulsion there are less. The evidence shows compulsory MIAMs + effective screening to enforce MIAMs results in more mediated settlements and less court applications. Basically, without effective compulsion people/lawyers avoid MSo for example, when all would-be family applicants to court had to attend a MIAM, before issuing proceedings, there was a massive increase in MIAMs and mediations. Once it became known MIAMs were not being required by the courts, in breach of the rules, applicants bypassed MIAMs and mediations fell and court applications rose massively. 
 
Why do some people say that MIAMs aren’t working? 
 
The courts are undermining MIAMs by not enforcing the requirement for an FM1 form signed by an accredited mediator who has conducted the applicant’s MIAMs before accepting their court application, so more people go to court and stay there. The NAO reported whilst 12% of applicants won’t proceed with mediation, 44% of their partners won’t engage and avoid MIAMs, those sole MIAMs seem pointless – but may lead to mediation later if proceedings compel party 2 to engage. 
 
Civil mediation has never had any compulsion to mediation, which is systematically avoided at the same time as people sing its praises. The Centre for Effective Dispute Resolution (CEDR) bi-ennial report for 2015 estimated there were 10,000 civil mediations in 2015 – and the Civil Justice Statistics indicated c 250,000 defended cases that year – so under 4% of those were mediated whilst costs ran out of control. 
 
The current adversarial system is inimical to settlement – mediation is the solution for the 21st Century 
 
People in conflict think if they don’t fight they will lose out – but the system of litigation often costs more than it is worth and makes it harder for people to park their arguments about rights, wrongs and legalities and do a deal. Litigation exacerbates conflict and mediation calms and resolves it. A modern approach based on the psychology of conflict which has developed in the latter decades of the 20th Century is required. 
 
Mediation is based on the psychology of conflict and its structured approach creates the light bulb moment when people realise they never will agree on the evidence or legalities – but they can sort it out. Mediation facilitates this – but only if it is a systematic compulsory brake. The most fruitful time for both civil litigants to have a MIAMs is when joint costs reach 20% of value. This excludes undefended cases. It captures parties who would never engage pre-issue because they think they’ll get away with it. 
 
Parties are beginning to get rattled about costs. The judge is wondering how to control costs. A good time to mediate. Family litigants who have previously avoided a pre-issue MIAMs may well have no understanding of how they can settle matters in mediation – and so they should have to attend a MIAMs at the 20% water-shed. If MIAMs were directed by judges for both parties at the 20% of case value stage – many people would mediate and many cases would stop right there. A brake for MIAMs at 20% of value could transform costs and outcomes for court cases and the number of cases progressing further could drop hugely at no cost to the court system, the MoJ or tax-payer. 
 
Effect of LASPO 
 
The NAO has said the government does not understand what influences people to go to court – and indeed the effect of LASPO was the opposite of what it predicted. Instead of spending an extra £10m on L/A mediation after compulsory referral to mediations stopped with the end of family L/A, MIAMs fell by 56% and L/A spend on mediation fell to under £9m. 
 
MIAMS must be compulsory but do not need to be free/funded by the tax-payer 
 
Whilst having a L/A contract our L/A income has fallen from a high years ago of 60% steadily to a current low of 5%. We know that it is totally unnecessary for MIAMs to be free, most people expect to pay without question, just as they pay court and legal fees. 
 
Litigation and Mediation should work in parallel 
 
Compulsory family MIAMs for nearly 20 years has created voluntary take-up of family mediation – about a third of our cases now come direct, but it takes years to change public attitudes. Without a compulsory referral point for non-family cases mediation remains a relative rarity for under 4% of defended civil cases. Compulsory MIAMs at the 20% of case value point would transform this. A system where mediation works in parallel with litigation, with built in referral points between the two, would transform attitudes about DR. Perfecting a reformed system takes time and some trial and error – but we can learn from the experience of nearly 20 years of on/off compulsion for family cases. I am happy to help.