MIAMs – the golden opportunity

From April 2024, the Family Procedure Rules (FPR) are changing to further shift the emphasis away from the family court towards non-court dispute resolution (NCDR). It is hoped that this will result in more referrals to mediation, so it is useful to know that standards exist for a Mediation Information and Assessment Meeting (MIAM).

There are two stages of mediation. The first stage is an initial confidential information and assessment meeting between each individual participant and the mediator. The second stage is a mediation meeting and it takes place after the individual meetings. The labelling of the first stage meetings can be confusing and mediators may refer to them as an initial/ introductory/ intake/ suitability/ assessment meeting or a MIAM. For ease of reference, I will refer to this first meeting as a MIAM.

A MIAM is a bespoke, tailor-made, individual and confidential pre-mediation meeting where the mediator meets with the first potential mediation participant and then, usually, the second. The two individual meetings are essential and they take place first.

The rationale behind a MIAM is to supply information about mediation and all other relevant NCDR processes, and to make an assessment of an individual’s circumstances, so that informed choices can be made about mediation, other processes, support, signposting and next steps generally.

New standards and guidance for MIAMs were introduced on 1 October 2022 by the Family Mediation Standards Board (FMSB) of the Family Mediation Council (FMC), through its MIAMs Working Group, which met over two years and consulted with the family mediation community. The new standards and guidance containing best practice are extensive and detailed, so I will simply give you the summary of the outcomes that a mediator must achieve in a MIAM:

1. provide participants with sufficient information about mediation and other dispute resolution processes to enable them to make informed choices about how to resolve the issues they raise
2. obtain information from participants about their circumstances and issues arising from separation
3. assess the safety and suitability of mediation for the participants
4. discuss and, where possible, identify with participants their next steps, including the value of seeking legal advice
5. ensure that meetings are conducted in ways that enable these outcomes to be achieved (normative conduct)

These new standards align with the recent changes to the FPR where, amongst other matters, it is stated that “A mediator who conducts a MIAM is a qualified independent facilitator who will also discuss all potentially suitable forms of NCDR”.

In a MIAM the mediator works flexibly to collaborate with and interpret the needs of participants by building rapport (arguably the most important element) whilst also exchanging information, making assessments and planning next steps so that a participant feels safe and is not rushed. We know that it is only when a person feels heard that they can listen. This means setting aside time (and oneself) to hear about the participant’s experience and what the participant needs. A good MIAM will appear to be a free-flowing conversation and will achieve the outcomes listed above. In other words, it is a skill.

There is much work to be done before a mediation process can take place and the MIAM is that foundation work, focussing attention on solutions and not just dwelling on the problems of the past. A good MIAM increases the likelihood of achieving a positive outcome in mediation with a better understanding of the people involved and their interests. We need to dispel the myths that a MIAM is a tick box exercise to sign a court form and that the mediator will only talk about mediation!

A MIAM can result in a mediation meeting taking place or not. If either participant or the mediator does not consider mediation to be suitable at that time, it will not take place and an authorised (accredited) family mediator can sign the required page of the relevant court application form. The mediator does not share any information about a decision not to mediate made by either participant or by the mediator (the mediator can decline to mediate because mediation is voluntary). Therefore, this provides a protection for victim survivors of domestic abuse.

A prospective applicant may claim that a MIAM exemption applies, for example in the circumstances of domestic abuse, child protection or urgency. It is important to note that mediation can be suitable for some cases which fall into these categories. Domestic abuse is not a bar to a MIAM because each participant will be seen separately. It may not be a bar to mediation either because mediators are trained to assess for domestic abuse situations and adjust the process and model accordingly (for example by offering separate spaces mediation and/or hybrid mediation).

The assessment for domestic abuse runs like a thread throughout the time spent with mediation participants and is an exception to the confidentiality principle upon which mediation is based. Mediators meet with many people who are in a high-conflict situation, experiencing domestic abuse or who have concerns about safety. Safeguarding is therefore an essential element of a MIAM and needs to be introduced at the outset of the meeting.

All family justice professionals meet individuals displaying high-conflict behaviours in their work and mediators are no exception. Mediators often have the advantage of meeting with both individuals from a separating couple and a MIAM is the first opportunity to assess for a narrow range of high-conflict behaviours, helpfully defined by Bill Eddy of the High Conflict Institute in San Diego, California. I am trained by Bill to mediate high-conflict disputes and I am looking out for a preoccupation with blaming others, lots of all-or-nothing thinking and solutions, unmanaged or intense emotions and extreme behaviour. It is important to recognise a person with a high-conflict personality, not to attempt to change them, but to use a range of skills to manage the behaviour. I am also trained by Bill Eddy as a mediation coach under the New Ways For Families skills training programme.

Before ending, it is worth noting two further points. If the first participant declines mediation following their MIAM, the second participant can still be invited to a MIAM so that they can receive the same information in an even-handed way (although sometimes it is not safe to invite the second participant because of domestic abuse issues). Secondly, mediation can take place in parallel with court proceedings.

As a final thought, the MIAM is a golden opportunity to get to know the mediation participants, their experiences, strengths, weaknesses, hopes, expectations, frustrations, and fears. People are usually apprehensive at the outset of the MIAM and finish the meeting more confident in the knowledge that there is a defined next step.

Elaine is a solicitor, mediator, mediation coach, trainer and supervisor at Richardson Family Law, and a vice chair of Resolution’s Dispute Resolution committee