CAN ONLY MEDIATORS DO MIAMs?

Can only mediators do MIAMs? Probably not, if you read the statute, not just the delegated legislation. We are after all talking about only ‘information’ – not doing the mediation. Why should not that information be provided by other professionals, such as solicitors, who have the relevant professional information to pass on to potential court applicants? Under the Children and Families Act 2014 s 10 there would seem to be no real reason why not.

CFA 2014 s 10 has put family mediation information and assessment meetings – MIAMs – on a statutory footing. MIAMs are defined by s 10(3) as meetings to discuss mediation and ways in which family disputes ‘may be resolved other than by the court’. A replacement FPR 2010 Part 3 (with lengthy practice direction (PD3A): Family mediation information and assessment meetings (MIAMs)) has followed. In FPR 2010 Part 3 the statutory scheme is entitled ‘Non-court Dispute Resolution’ (‘NCDR’), whereas s 10 speaks only of ‘mediation’.

Mediation is not statutorily defined either by CFA 2014 or in FPR 2010. NCDR is defined as ‘methods of resolving a dispute, including mediation, other than through the normal court process’ (FPR 2010 r 2.3(1)), a negative definition which includes mediation, but which could include any means of resolving an issue between two or more people: tossing coins, armed combat, duelling etc.

CFA 2014 s 10(1) states that before making a ‘relevant family application’, a person must attend a MIAM which is limited under CFA 2010 s 10 to the providing of ‘information’ about mediation – only: NCDR is not touched on at this stage.CFA 2014 s 10(2)(b) leaves it that FPR 2010 ‘may make provision about convening a family mediation information and assessment meeting, or about the conduct of such a meeting’.

Nothing is said in s 10 about who is to provide this information, nor to limit who may provide it. Yet, for the first time anywhere, FPR 2010 r 3.9 restricts the provision of information to ‘authorised family mediators’: ie it limits those who can provide the prescribed information. An authorised family mediator is defined by FPR 2010 r 3.1 as

“authorised family mediator” means a mediator who is –

(a)        subject to the Family Mediation Council’s code of conduct by virtue of his or her membership of a Family Mediation Council member organisation; and

(b)        certified to undertake MIAMs by the professional practice consultant who is supervising the mediator’s practice and who is a member of and approved for the purpose by a Family Mediation Council member organisation;

The question must be: does the provision for ‘convening a meeting’ (per s 10(2)(b)) in r 3.9 exclude all other methods of providing information about mediation per s 10(3)? If it does, is it intra vires the statute?‘Convening’ a meeting, is not the same as restricting that meeting to a particular category of informant. It is not easy to read into CFA 2014 s 10 the limitation which the rules committee have put on who should conduct the information meeting, and to envisage that Parliament would have intended that necessarily another profession be involved in this solely informative exercise.

The question is important since s 10 and FPR 2010 Part 3 inhibit the right to issue process which has been guaranteed (subject to leave in some instances) to people who need help from the courts at least since Magna Carta. And for a potential applicant for a remedy under the procedures in FPR 2010 to work out if they are eligible for an exemption – the only way around the MIAMs provisions – does not make for an easy read.

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