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Lecture by Sir Andrew McFarlane P at Family Mediation Association Conference

Posted on 28 February 2023

Sir Andrew McFarlane P delivered a lecture at the Family Mediation Association Conference on "relaunching family mediation" at which he reiterated that his number one priority during the remainder of his term as President is to reform the approach to the resolution of private children disputes. He considers the overall approach that is needed is to provide information and support for parents so that they may move away from a ‘justice’ based response to parental fallout towards cooperative separated parenting, where child welfare (rather than playing out parental conflict) is the central and overriding factor. He expressed concern that the requirement to attend a Mediation Information and Assessment Meeting (MIAM) is honoured more in the breach than in the observance, and considers that the requirement to attend a MIAM needs to be addressed. He indicated that the pilot schemes running in North Wales and Dorset are beginning to demonstrate that the new, more proactive approach, based upon earlier and more assertive intervention by CAFCASS and the court, are working and being welcomed by both parents and professionals.

He noted that mediation is but one part of a patchwork of resources that should be available to support separating parents to resolve disputes. He pointed out the "one couple one lawyer" approach that is available (particularly now that joint applications for divorce are possible) and noted the benefits of parties being able to get an idea of what the court process involves (& the likely outcome) at an early stage. He would support parties having to attend a compulsory "IAM" – i.e. a meeting that both parents would have to attend with a generalist professional who could impart information, guidance and advice more generally about parenting after separation (or resolution of financial issues).

Claire Yorke says: The available statistics show that mediation works. Figures released by the Government in 2022 showed that, of the couples who availed themselves of the Family Mediation Voucher scheme, 65% reached either a whole or partial agreement away from court, while a further 3% only attended court to formalise their agreement. Many couples who initially believe that their differences cannot be resolved without the court nonetheless successfully achieve a resolution through mediation. However, mediation absent legal advice and an understanding of the applicable principles is less likely to succeed. A recent qualitative study by the Nuffield Family Justice Observatory suggested, amongst other things, that accessible models that provide advice and guidance to the families that want it need to be developed as an alternative to, or in addition to mediation, along with making information about what mediation is and how it works more widely available to parents so they can know what to expect from the mediation process. Ultimately, using a range of different resources, including mediation, early neutral evaluation and the provision of advice and information, tailored to the needs and circumstances of the couple or parents is likely to create the best environment in which to achieve a resolution away from court.

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