Mediation for Reconciliation: From Info Meetings to Compulsory Assessments | Study notes Family Law

Mediation for Reconciliation

The Family Law Act 1996, Part 2, provided for “information meetings” for

parties contemplating divorce. Under provisions which remain on the statute

book, the requirements relating to “information meetings” had to be satisfied

before the court could make a divorce or a separation order.

Attendance at 8.— (l) The requirements about information meetings are as follows.

information

meetings. (2) A party making a statement must (except in prescribed

circumstances) have attended an information meeting not less than three

months before making the statement.

(3) Different information meetings must be arranged with respect to

different marriages.

(4) In the case of a statement made by both parties, the parties may

attend separate meetings or the same meeting.

(5) Where one party has made a statement, the other party must

(except in prescribed circumstances) attend an information meeting

before—

(a) making any application to the court—

(i) with respect to a child of the family; or

(ii) of a prescribed description relating to property or

financial matters; or

(b) contesting any such application.

Pilot studies in the late 1990s however dissuaded the then Lord Chancellor

from bringing the provisions into force. The report on the pilot studies

included the following observations:

“The research has concluded that none of the six models of information meeting tested over a two-year period

is good enough for the implementation of Part II on a nationwide basis. It has shown that, for most people, the

meetings came too late to save marriages and tended to incline those who were uncertain about their

marriages towards divorce. Whilst people valued the provision of information, the meetings were too

inflexible, providing general information about both marriage saving and the divorce process . People wanted

information tailored to their individual circumstances and needs . In addition, in the great majority of cases,

only the person petitioning for divorce attended the meeting, but marriage counselling, conciliatory divorce

and mediation depend for success on the willing involvement of both parties.”

For anyone who, like myself, is both a solicitor and a mediator, the two

extracts I have highlighted above indicate that the subjects of the research, or

at least one out of every couple, were more comfortable retaining a solicitor

than a mediator. And there is an obvious logic to this. If one member of a

married couple has come to the bitter conclusion that their marriage is over,

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Mediation for Reconciliation

The Family Law Act 1996, Part 2, provided for “information meetings” for

parties contemplating divorce. Under provisions which remain on the statute

book, the requirements relating to “information meetings” had to be satisfied

before the court could make a divorce or a separation order.

Attendance at 8.— (l) The requirements about information meetings are as follows. information meetings. (2) A party making a statement must (except in prescribed circumstances) have attended an information meeting not less than three months before making the statement. (3) Different information meetings must be arranged with respect to different marriages. (4) In the case of a statement made by both parties, the parties may attend separate meetings or the same meeting. (5) Where one party has made a statement, the other party must (except in prescribed circumstances) attend an information meeting before— (a) making any application to the court—

(i) with respect to a child of the family; or

(ii) of a prescribed description relating to property or financial matters; or (b) contesting any such application.

Pilot studies in the late 1990s however dissuaded the then Lord Chancellor

from bringing the provisions into force. The report on the pilot studies

included the following observations:

“The research has concluded that none of the six models of information meeting tested over a two-year period is good enough for the implementation of Part II on a nationwide basis. It has shown that, for most people, the meetings came too late to save marriages and tended to incline those who were uncertain about their marriages towards divorce. Whilst people valued the provision of information, the meetings were too inflexible, providing general information about both marriage saving and the divorce process. People wanted information tailored to their individual circumstances and needs. In addition, in the great majority of cases, only the person petitioning for divorce attended the meeting, but marriage counselling, conciliatory divorce and mediation depend for success on the willing involvement of both parties .”

For anyone who, like myself, is both a solicitor and a mediator, the two

extracts I have highlighted above indicate that the subjects of the research, or

at least one out of every couple, were more comfortable retaining a solicitor

than a mediator. And there is an obvious logic to this. If one member of a

married couple has come to the bitter conclusion that their marriage is over,

the next step for them is to start working out the practical consequences of

that conclusion. They have little motivation to pay someone who is outside

that marriage to attempt to persuade them that it can work after all.

The Children and Families Bill 2013, which by the end of the year had reached

its report stage in the House of Lords, will if enacted finally repeal these

inactive provisions. They will, however, introduce instead a requirement for a

different type of 'information meeting'. The Mediation Information and

Assessment Meeting (MIAM) is already something an applicant in family

proceedings is 'expected' to attend save in exceptional circumstances under

Practice Direction 3A of the Family Procedure Rules, but Section 10 of the draft

Bill would make it compulsory in many cases.

10 Family mediation information and assessment meetings (1) Before making a relevant family application, a person must attend a family mediation information and assessment meeting. (2) Family Procedure Rules— (a) may provide for subsection (1) not to apply in circumstances specified in the Rules, (b) may make provision about convening a family mediation information and assessment meeting, or about the conduct of such a meeting, (c) may make provision for the court not to issue, or otherwise deal with, an application if, in contravention of subsection (1), the applicant has not attended a family mediation information and assessment meeting, and (d) may provide for a determination as to whether an applicant has contravened subsection (1) to be made after considering only evidence of a description specified in the Rules. (3) In this section— “the court” means the High Court or the family court; “family mediation information and assessment meeting”, in relation to a relevant family application, means a meeting held for the purpose of enabling information to be provided about— (a) mediation of disputes of the kinds to which relevant family applications relate, (b) ways in which disputes of those kinds may be resolved otherwise than by the court, and (c) the suitability of mediation, or of any such other way of

Section 8 of the Family Law Act 1996 envisaged a very wide remit for the

meetings:

(6) In this section "information meeting" means a meeting organised, in accordance with prescribed provisions for the purpose—

(a) of providing, in accordance with prescribed provisions, relevant

information to the party or parties attending about matters

which may arise in connection with the provisions of, or made under, this Part or Part III; and

(b) of giving the party or parties attending the information meeting

the opportunity of having a meeting with a marriage counsellor

and of encouraging that party or those parties to attend that

meeting. (7) An information meeting must be conducted by a person who— (a) is qualified and appointed in accordance with prescribed provisions; and (b) will have no financial or other interest in any marital proceedings between the parties. (8) Regulations made under this section may, in particular, make provision—

(a) about the places and times at which information meetings are to

be held; (b) for written information to be given to persons attending them; (c) for the giving of information to parties (otherwise than at information meetings) in cases in which the requirement to attend such meetings does not apply; (d) for information of a prescribed kind to be given only with the

approval of the Lord Chancellor or only by a person or by

persons approved by him; and (e) for information to be given, in prescribed circumstances, only with the approval of the Lord Chancellor or only by a person, or by persons, approved by him. (9) Regulations made under subsection (6) must, in particular, make provision with respect to the of information about— (a) marriage counselling and other marriage support services; (b) the importance to be attached to the welfare, wishes and feelings

of children;

(c) how the parties may acquire a better understanding of the ways

in which children can be helped to cope with the breakdown of

a marriage; (d) the nature of the financial questions that may arise on divorce or separation, and services which are available to help the parties; (e) protection available against violence, and how to obtain support and assistance; (f) mediation; (g) the availability to each of the parties of independent legal advice and representation; (h) the principles of legal aid and where the parties can get advice

about obtaining legal aid;

(i) the divorce and separation process.

Mediation for Reconciliation: From Info Meetings to Compulsory Assessments, Study notes of Family Law

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Mediation for Reconciliation

The Family Law Act 1996, Part 2, provided for “information meetings” for

parties contemplating divorce. Under provisions which remain on the statute

book, the requirements relating to “information meetings” had to be satisfied

before the court could make a divorce or a separation order.

(i) with respect to a child of the family; or

Pilot studies in the late 1990s however dissuaded the then Lord Chancellor

from bringing the provisions into force. The report on the pilot studies

included the following observations:

For anyone who, like myself, is both a solicitor and a mediator, the two

extracts I have highlighted above indicate that the subjects of the research, or

at least one out of every couple, were more comfortable retaining a solicitor

than a mediator. And there is an obvious logic to this. If one member of a

married couple has come to the bitter conclusion that their marriage is over,

the next step for them is to start working out the practical consequences of

that conclusion. They have little motivation to pay someone who is outside

that marriage to attempt to persuade them that it can work after all.

The Children and Families Bill 2013, which by the end of the year had reached

its report stage in the House of Lords, will if enacted finally repeal these

inactive provisions. They will, however, introduce instead a requirement for a

different type of 'information meeting'. The Mediation Information and

Assessment Meeting (MIAM) is already something an applicant in family

proceedings is 'expected' to attend save in exceptional circumstances under

Practice Direction 3A of the Family Procedure Rules, but Section 10 of the draft

Bill would make it compulsory in many cases.

Section 8 of the Family Law Act 1996 envisaged a very wide remit for the

meetings:

(a) of providing, in accordance with prescribed provisions, relevant

information to the party or parties attending about matters

(b) of giving the party or parties attending the information meeting

and of encouraging that party or those parties to attend that

(a) about the places and times at which information meetings are to

approval of the Lord Chancellor or only by a person or by

of children;

(c) how the parties may acquire a better understanding of the ways

in which children can be helped to cope with the breakdown of

about obtaining legal aid;

As this section of the Act was never brought into force, no Regulations were

ever made under it. But the scope of the meetings, which would have been

part of the 1990s pilot study, can be seen in section 8(9)(a)-(i). Mediation

noticeably comes sixth on the list of nine, whilst at the top of the list is

information about marriage counselling and other marriage support services.

I could have entitled this article Reconciliation to Mediation. For this is

evidently the trend illustrated by the soon-to-be-repealed statute and the

provisions which are set to replace it. The primacy has passed from the

objective of saving saveable marriages to a process which keeps parties out of

the court system.

I entitled it instead Mediation for Reconciliation , as this still acknowledges the

legislative trend, whilst also affirming that mediation has a wider remit than

just providing a cheaper and quicker route to divorce and provision for children

and finances than the court can provide.

I have mediated not only family issues, but commercial, neighbour, and

political issues also. Mediation can be an educative process for those involved

in it. Problems with a relationship of any kind can result from failure in

precisely the area mediators can assist with: communication and discussion of

key issues in the relationship. Parties to mediation can learn to have the hard

conversations they were unable to have before. Accumulated resentment and

frustration can be acknowledged, and agreement reached on more

constructive ways forward. To paraphrase Nelson Mandela, people learn to

hate, and they can learn to love. It is a shame if during such a process of

learning, the end result is predetermined as being the separation of the

parties.

Peter Webster

Principal, Thea Limited