Mediation: Guidance

1. All family mediators can undertake initial meetings with clients before mediation commences (‘pre-mediation meetings’), explain about mediation, and assess whether mediation is suitable
2. From 1st January 2016, where a client is making an application to a court on a family matter (children or finance) and seeks a Mediation Information and Assessment Meeting (MIAM) to enable them to proceed with their court application, only ‘authorised family mediators’ (those who hold FMCA, with one temporary exception as explained in paragraph 9 below) can (a) conduct the MIAM and (b) sign the relevant court form.
3. It is important that all family mediators are aware of these changes, and if they do not hold FMCA they take appropriate steps to ensure that:
(a) They have adequate support from their PPC,
(b) Their clients are aware that the mediator cannot sign court forms, and
(c) The clients are aware of the steps that they would need to take should they subsequently wish to make an application to court.
4. In undertaking pre-mediation meetings and MIAMs, all family mediators should comply with the FMC Code of Practice and the relevant parts of the FMC professional competence standards, i.e. the whole of Section B and Section C 1-5. The standards can be found in Part 1, Appendix 2 of the FMC Standards Framework Manual.
In addition, for MIAMs, they must comply with Rule 3.9 (2) of the Family Procedure Rules.
5. Where someone wishes to make an application to court on a family matter, whether children or finances, Section 10 (1) of the Children and Families Act 2014 requires that person to attend a MIAM.
6. Rules 3.6, 3.7, and 3.8 of the Family Procedure Rules set out (a) the applications to which the MIAM requirement applies, (b) procedures for making an application, and (c) the circumstances in which the MIAM requirement does not apply. Rule 3.9 (2) sets out how the MIAM is to be conducted, and states that it must be conducted by an authorised family mediator (see paragraphs 8 and 9 below).
7. The relevant court forms reiterate that a MIAM has to be conducted by, and the form signed by, an authorised family mediator. The court forms are:
• C100 (issued 4.14) An application under section 8 of the Children Act 1989 for child arrangements, prohibited steps, specific issue order or to vary or discharge or ask permission to make a section 8 order.
• Form A (issued 4.14) Notice of [intention to proceed with] an application for a financial order.
• Form A1 (issued 4.14) Notice of [intention to proceed with] an application for a financial remedy (other than a financial order) – an order under Schedule 1 to the Children Act 1989 (financial provision for children); or financial provision under Part 1 of the Domestic Proceedings and Magistrates’ Courts Act 1978 or Schedule 6 to the Civil Partnership Act 2004.
• Form FM1. This form must be sent to the court with Form C1 or Form C2 for any of the following types of Children Act 1989 order: parental responsibility or termination of parental responsibility; appointing a child’s guardian or terminating the appointment; an order giving permission to change to a child’s surname, or remove a child from the United Kingdom; a special guardianship order, or an order varying or discharging such an order.
8. An “authorised family mediator” is defined in the Family Procedure (Amendment No. 3) Rules 2015 as “a person identified by the Family Mediation Council as qualified to conduct a MIAM”. The same definition will be used in the amended Practice Direction 3A.
9. From 1st January 2016, following the FMC Standards Framework, ‘qualified to conduct a MIAM’ will be interpreted as holding current Family Mediation Council accreditation (FMCA). FMCA mediators will be issued with a unique FMC registration number that ends in ‘A’.
For the early part of 2016 only, this extends to family mediators who were previously authorised to conduct MIAMs and who have submitted a completed portfolio for assessment by the Family Mediation Council or the Law Society by 31st December 2015. This interim arrangement applies only until the assessment result is known.
10. If you do not come within one or other of the categories detailed in paragraph 9, you are not authorised to conduct MIAMs as defined in the Family Procedure Rules, and not authorised to sign Court Forms from 1st January 2016. This applies regardless of whether you have previously been authorised to conduct MIAMs. Please note that it is a breach of the Family Procedure Rules and the FMC Code of Practice to undertake MIAMs or sign forms when you are not authorised to do so.
11. If you are a trained family mediator who is not authorised as defined in paragraph 9, you may co-conduct a MIAM under the direct supervision of an FMCA mediator (who can also sign the relevant court form).
12. All family mediators can undertake pre-mediation meetings with clients to explain about mediation and assess whether mediation is suitable, provided that these are not MIAMs where a client intends to make an application to a court on a family matter.
13. If you are not an authorised family mediator and there is a possibility that clients may require a court form to be signed, it is important that the clients know that you cannot sign court forms. You may wish to consider co-conducting the initial meeting with your PPC or another FMCA mediator, or having your PPC or other FMCA mediator present when seeing clients whom you are aware are likely to present a complex or difficult case.
14. If you are a not an authorised family mediator you may wish to consider the following options:
• If mediation breaks down and subsequently one of the clients wishes to apply to a court, you may draw the client’s attention to the Exemptions paragraphs in the Court Application Form. If the client believes the exemption applies, the client or their legal representative can claim exemption from attending a MIAM. In Form C100 the exemption grounds are set out at Section 13d, in Form A at Section 3c, in Form A1 at Section 4c and in Form FM1 at Section 4.
• When initial meetings do not proceed to mediation and subsequently one of the clients wishes to make an application to court, it is possible for your PPC to sign the relevant Court Forms when s/he has been involved with, or has adequate knowledge of, the case. You need to maintain good communication with your PPC so that the PPC can give support at all stages, understands fully everything that you have done, and where necessary has the time to give the case a thorough review. It is important to note that PPCs are under no obligation to sign court forms simply because they are asked to do so by a mediator they supervise.
• Where another FMCA mediator has co-conducted or observed the pre-mediation meeting, s/he should be able to sign the relevant form.
15. As a PPC, you should ensure that any mediators you supervise who are not FMCA mediators are aware of the above guidance.
16. You are not under any obligation to sign court forms simply because you are asked to by a mediator whom you supervise. However, you may do so if, after receiving and carefully reviewing the information received from your consultee, you agree based on the information presented to you that the conditions required have been met.
17. When you sign court forms for a client seen by another mediator, you must ensure that you have sufficient knowledge of the case to make a judgement. This does not always mean that you have seen the clients face-to-face, but you must be confident from your knowledge of the case either that mediation is unsuitable, or that one of the clients does not wish to start or continue mediation, or that mediation has broken down. If it is your considered opinion that the form should not be issued, you are required to provide the mediator with your reasons in writing.
18. You will need to agree with your consultee in advance what, if any, your charges will be for you to sign the court form.
19. In addition, you and your consultee will need to have in place an agreed approach for any such cases that addresses all the possible practicalities and ensures that the process does not cause unnecessary delay for the client.
20. You should ensure that your Professional Indemnity Insurance covers you for any actions that you take under paragraphs 15-19 above.