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MEDIATION AND INFORMATION ASSESSMENT MEETINGS COME IN ON 6 APRIL

ARE YOU READY?

Dear Member,

This newsletter is being sent to all Resolution members because the new Pre-application Protocol for mediation information and assessment meetings will affect all family lawyers and their clients not just those trained in ADR processes.

All members should read these guidance notes carefully, changes may need to be made to current practice for example, client care letters may need some alterations and the information you give to clients about the process will need to change.

The Pre-application Protocol and an example of the form FM1 can be found by following the link on the members’ home page of our website. Please note that the Ministry of Justice has confirmed that forms FM1 will be available from the end of March from the courts and Direct Gov website.

MIAMS referrers guidelines

MEDIATION INFORMATION AND ASSESSMENT MEETINGS

GUIDANCE FOR REFERRERS

These guidance notes do not and cannot affect any obligations in law, specific court orders or rules of professional conduct.

Good practice guidance can inevitably only deal with the generality of situations. It cannot be an absolute rule. The facts of any particular case may justify and/or require a lawyer to depart from these guidelines.

Practice Direction 3A – Pre-Application Protocol for Mediation Information and Assessment comes into force on 6 April 2011. From that date applicants wishing to issue an application in relevant family proceedings should provide a completed form FM1 (available from http://www.direct.gov.uk/ and courts from late March) with their application confirming that they have attended a mediation assessment meeting or that they are exempt from doing so. The protocol to which is attached an example of form FM1 can be found on the members’ home page of the Resolution website.

Who should attend a mediation assessment meeting?

According to the Protocol, all applicants who wish to apply to the court to make an order in relevant family proceedings (defined in Annex B to the Protocol) subject to the exemptions listed in Annex C (and the FM1 form) should attend a meeting. The exemptions are wide ranging and referrers should consider these exemptions very carefully before referring to a mediator. Where an exemption listed in parts 3 and 4 of the form FM1 applies to your client you can sign the FM1 form yourself and you do not need to refer to a mediator.

Who can carry out the assessments?

The Protocol states that only family mediators can carry out this work. However not all family mediators will appear on the list (see below) of mediators authorised to carry out the mediation and information assessment meetings (MIAMS) automatically. The Ministry of Justice tasked the Family Mediation Council (FMC) with setting out the criteria for authorised mediators and they have separated mediators into 3 categories. The first category comprises active mediators who have LSC competence, the second those who are accredited and the third category mediators working towards their accreditation.). Categories 2 and 3 will not automatically be authorised to carry out assessments. Some will need to do the financial eligibility module, some will need to attend a training day and some will need to obtain their PPC’s approval too (please look at the further information on this available in the members’ section of our website http://www.resolution.org.uk/ ).

Where can I find a list of authorised mediators?

In time for the 6 April start date there will be lists of authorised mediators on http://www.directgov.co.uk/ , local family courts and the Community Legal Advice Helpline (0845 345 4345) See point 4 of Annex A to the Protocol. As more mediators become “authorised “the lists will be updated by the Ministry of Justice on a regular basis.

What happens if there is no mediator near me?

Have a look at point 13 of Annex C of the Protocol. You should contact 3 mediators within 15 miles of the applicant’s home and if none of them can offer an appointment within 15 working days of the date of contact your client does not need to attend an assessment. If there are fewer than 3 mediators within the specified distance then you only need to contact those mediators within range.

What information should I give to the mediator?

You should provide your client’s contact details so that the mediator can contact them to arrange an appointment. The Protocol states that you should provide the mediator with the contact details of the other party or parties to the dispute (if you have them) so that the mediator can contact them to discuss their willingness and availability to attend a mediation information and assessment meeting too.

What must the meeting cover?

The Protocol says that eligibility for public funding should be covered and that information should be provided on family mediation and other forms of alternative dispute resolution. The Protocol provides no further guidance on the content of the meetings. Mediators will need to consider the party's/ies' suitability for mediation and as part of that process will be screening for domestic abuse.

Who should I refer to if my client or another party might be eligible for public funding?

The Protocol requires all mediators to establish during the assessment process whether either or both of the parties would be eligible for public funding. For those mediators who are qualified to work with publicly funded clients this assessment will pose no difficulty. However if a client is assessed as eligible for legal aid then the mediator can only be paid by the LSC for the assessment (and subsequent mediation if deemed suitable and willing to proceed) if s/he has a current contract to deliver publicly funded mediation already.

What happens after the meeting?

If the mediator deems the matter and parties suitable for mediation and the parties wish to try mediation then mediation will commence and you should be contacted by the mediator to confirm this. The applicant may return to you for legal advice during the mediation and at the end when either the mediation has concluded with a memorandum of understanding or has broken down. If the mediation breaks down then the mediator will provide to the applicant the form FM1 so that proceedings can be issued.

We will pass on to you upon receipt any further information and/or guidance received from any source.

MIAMS mediators guidance

MEDIATION AND INFORMATION ASSESSMENT MEETINGS

GUIDANCE FOR MEDIATORS

These guidance notes do not and cannot affect any obligations in law, specific court orders or rules of professional conduct.

Good practice guidance can inevitably only deal with the generality of situations. It cannot be an absolute rule. The facts of any particular case may justify and/or require a lawyer to depart from these guidelines.

Practice Direction 3A – Pre-Application Protocol for Mediation Information and Assessment comes into force on 6 April 2011. From that date applicants wishing to issue an application in relevant family proceedings should provide a completed form FM1 (available from www.direct.gov.uk and courts from late March) with their application confirming that they have attended a mediation assessment meeting or that they are exempt from doing so. The protocol to which is attached an example of form FM1 can be found on the members’ home page of the Resolution website.

Who must attend the assessment meeting?

All applicants wishing to issue an application in relevant family proceedings and the Protocol says that mediators should contact potential respondents and invite them to attend too.

Who is exempt?

An applicant is not expected to attend a MIAM where any of the circumstances in Annex C of the Protocol apply. There is a long list of exemptions which the applicant’s lawyer and/or the applicant will consider (parts 3 and 4 of the form) and when one applies they will sign the form confirming that they are exempt. They will then proceed straight to issue their application.

How will referrals work?

The Protocol is silent on this and it is likely that the referrals will work in different ways depending on who or where they are coming from. It may be a good idea for you to discuss with any regular referrers how you would like the referral to work. You may wish to draft a referral form to be filled in and sent to you by the referrer. You may also wish to contact potential referrers in advance to discuss this. Referrers should provide their client’s contact details so that you can contact them to arrange an appointment.

Willingness test?

The Protocol states (in Annex A at point 5) that the applicant or the applicant’s solicitor should provide the mediator with the other party/ies contact details . The mediator should try to contact them to discuss whether they would be willing and able to attend the assessment. How the mediator deals with this is left up to the mediator there is no guidance in the Protocol. The mediator may decide to send a pro forma letter to the other party/ies explaining the assessment process to them and asking them to respond within a period of time. This letter could be followed up with a phone call after a period of time has elapsed if no response has been received.

What do I do if the applicant or another party is assessed by me as being eligible for public funding?

If you have a contract with the Legal Services Commission to offer publicly funded mediation then you can be paid by them for the assessment (and for the mediation) in the usual way. If you do not then you will not be paid for the assessment and could not receive payment for carrying out mediation if you assessed the parties as suitable. In such cases the mediator should refer the client(s) to a mediator who has a current contract with the LSC to deliver family mediation services. You may to try to ascertain whether the client(s) may be eligible for public funding in advance of the meeting and if so refer them to a mediator who has a current LSC contract to deliver this service.

How do I charge for the willingness test and/or assessment meeting?

You will need to consider how to be paid for this work. Resolution strongly encourages mediators to charge for the meeting (and is backed in this by the FMC) and suggests that the rate charged should be no less than would be payable under the publicly funded scheme. That is £87 for a separate assessment and £130 where the parties attend jointly. Mediators may wish to charge their usual rate for this work. The charge could be expressed as being a charge for provision of the completed form FM1. The Protocol says at point 7 in Annex A that where none of the parties is eligible for or wishes to seek public funding any charge made by the mediator will be the responsibility of the party/ies attending the assessment meeting in accordance with any agreement made with the mediator.

What should the assessment meeting cover?

The Protocol says that eligibility for public funding should be covered and that information should be provided on family mediation and other forms of alternative dispute resolution. The Protocol provides no further guidance on the content of the meetings. Mediators will need to consider the party/ies suitability for mediation and as part of that process will be screening for domestic abuse.

Do I need to state the reasons why mediation is/is not suitable?

No, there is no provision on the form FM1 for this other than the unwillingness of another party, and to give such information could be in breach of one of the fundamental principles of mediation, namely confidentiality. Any attempt by the court to find out the reason why mediation is not suitable should be strenuously resisted.

What do I do if the applicant and other party/ies are suitable for mediation and willing to try it?

You can proceed to mediation, getting them to sign the Agreement to Mediate in the usual way.

You should contact the parties’ legal representative(s) if instructed to let them know that mediation is suitable and the parties wish to try it.

What should I do if the matter is not suitable for mediation?

You should sign and return the form FM1 either to the applicant or to the applicant’s legal representative. The applicant will then be able to issue a court application.

We will pass on to you upon receipt any further information and/or guidance received from any source.

Mediator database

Family Mediation Council logo

Which mediators can carry out these assessments?

The Family Mediation Council has set the criteria for those wishing to carry out the assessment meetings which you can find here. We have already written to all mediators who are listed on our database as offering publicly funded mediation to ask them if they wish their details to be included on the Ministry of Justice list of authorized mediators which will appear on www.direct.gov.uk These mediators all fall into category A. All Resolution accredited mediators will be contacted by email with details of the distance learning module on financial eligibility which they will need to do to satisfy the criteria and they will also receive the form they need to fill in to be registered with the MoJ as an authorized mediator. All other mediators need to undertake the one day assessment training and will also need to be supported by their PPC in order to do the assessment meetings. Once they have this they can apply to Resolution to be registered.

The Family Mediation Council has approved the following criteria for those carrying out mediation assessments

ALL mediators carrying out these assessments must:

· Have successfully completed an FMC recognised foundation training course and

· Be a member of an FMC Member organisation and

· Meet requirements for professional practice supervision and

· Meet CPD requirements and

· Carry professional indemnity insurance and

· Be currently in practice as a mediator.

AND IN ADDITION fulfill the requirements in ONE of the four categories below:

A. Have gained FMC, or under its predecessor, LSC competence assessment recognition or practitioner membership of the Law Society Family Mediation Panel

OR

B. Have gained accreditation of their Member Organisation and

Have written certification from their PPC that they are familiar with assessing for eligibility for public funding.

OR

C. For mediators working towards either accreditation or LSC recognition

i. Have the written support of their PPC, to be given in accordance with FMC guidelines to PPCs; and

ii. Have attended an FMC approved one day training on mediation information and assessment meetings provided by an FMC Member Organisation which will include eligibility assessment.

OR

D. Mediators who have not carried out any mediations including actual mediation sessions within the last 5 years must

i. Have attended an approved refresher course offered by an FMC Member Organisation; and

ii. Be a member of an FMC Member Organisation; and

iii. Have attended a one day training course on assessment meetings provided by an FMC Member Organisation; and

iv. Have the written support of their PPC to be given in accordance with FMC Guidelines for PPCs; and

v. Have a training plan agreed with their PPCs; and

vi. Carry professional indemnity insurance.

NB: These arrangements are transitional and will be reviewed within 12 months of implementation.

Mediation assessment meeting training

The FMC criteria sets out that all mediators who are not either LSC competence assessed or Resolution or FMA accredited must undertake this training so demand for this training is high and places are filling up as soon as we schedule new courses. We will be running more of these courses and new dates are being agreed. Please contact denise.sullivan@resolution.org.uk to register your interest.


2011 ADR conference

Murray Edwards College, Cambridge

THE 2011 RESOLUTION ADR CONFERENCE WILL BE HELD AT

MURRAY EDWARDS COLLEGE CAMBRIDGE on 22 and 23 September

We are delighted to announce that Jonathan Djanogly MP Parliamentary Under Secretary of State for Justice has accepted our invitation to deliver the key note speech.

Please see here for further conference details. A flyer will follow shortly.