Mediation practice in England

The relationship between the courts and mediation in England is both flexible
and relatively detached. Thus English law has no system of mandatory
mediation: it does not require parties to court proceedings first to mediate
before receiving judicial examination of the case. Nor do English judges directly
engage in mediation sessions. Nor can an English court issue a positive order
backed by a direct sanction that parties must mediate in good faith.
Courts should be the last resort for people involved in civil or family disputes
unless there are issues around urgency and safety, eg in relation to child abuse
or domestic violence. Mediation, in particular, can be a flexible, speedy and cost
effective way to resolve disputes. It is a confidential process that enables both
parties to explain and then discuss what their needs and concerns are to each
other in the presence of an independent third party the mediator so that they
reach an agreement between themselves.
The individuals concerned have greater control and responsibility in resolving
disagreements than if they went to court. Mediation empowers parties to control
the length of the process, the issues they would like to discuss, and the outcome.
Mediation can also be less stressful, particularly for any children involved, and in
the long run, can be cheaper than going to court.
Mediation for family cases
Mediation can be particularly beneficial where there will be a continuing
relationship following dispute resolution such as in family cases. Family
mediation can help reduce hostility and improve chances of long-term cooperation between parents and couples, for example in agreeing arrangements
for their children and financial matters. People applying to the Family Court to
resolve disputes over children or finances, legally need to prove theyve
considered mediation first. Family mediators are independent professionals
trained to who help separating couples to reach agreements without going to
court.
Mediation can help as:
It gives you more say about what happens than going to court;
Its less stressful, with less conflict between you and your ex;
The agreements you make can be changed if your circumstances change;
It can be less upsetting or damaging for any children involved and helps them
continue important family relationships.;
It can be quicker and cheaper than long drawn-out court battles.
If people still want to go to the Family Court to resolve their dispute, they can do
this:
by proving to the judge that they have been to a mediation information and
assessment meeting with a family mediator but that mediation is not suitable
for them.
by showing they are exempt from having to consider mediation, for example, if
domestic violence is involved; or

To try and help the mediation sector, and advice organisations to promote
mediation, we have produced a number of public information materials. These
have also been shared with family courts around the country.
Mediation for civil disputes
Mediation can be used to resolve a whole range of everyday disputes including:
housing issues
business disputes
small claims
debt claims
boundary disputes
employment disputes
contractual disputes
personal injury and negligence claims, and
community disputes such as nuisance or harassment issues.
The Small Claims Mediation Service deals with monetary claims under 10,000
that are already going through the courts. If both parties agree to using
mediation, they will be contacted by the service. As most cases are dealt with by
telephone, they save the time and the expense of having to go to court. The Civil
Mediation Directory is an online tool listing a number of local and national civil
and commercial mediation providers, all of whom are accredited by the Civil
Mediation Council.1
Rules and regulations of mediation /standard of practice 2
English mediation is currently a private activity. There is no central or official
regulation. Admittedly, mediators can become accredited. This involves (quite a
rigorous) training by private mediation organisations.

PRACTICE DIRECTION 3A
(FAMILY MEDIATION INFORMATION AND ASSESSMENT MEETINGS (MIAMS))
Summary
1.The purpose of this Practice Direction is to supplement the MIAM Rules in the
Family Procedure Rules and to set out good practice to be followed by
prospective respondents who are expected to also attend a MIAM.
1https://www.justice.gov.uk/courts/mediation

2 http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_03a

2.Under section 10(1) of the Children and Families Act 2014, it is now a
requirement for a person to attend a MIAM before making certain kinds of
applications to obtain a court order. (A list of these applications is set out in Rule
3.6 and in paragraphs 12 and 13 below.) The person who would be the
respondent to the application is expected to attend the MIAM. The court has a
general power to adjourn proceedings in order for non-court dispute resolution to
be attempted, including attendance at a MIAM to consider family mediation and
other options.
3.A MIAM is a short meeting that provides information about mediation as a way
of resolving disputes. A MIAM is conducted by a trained mediator who will assess
whether mediation is appropriate in the circumstances. A MIAM should be held
within 15 business days of contacting the mediator.
4.There are exemptions to the MIAM requirement. These are set out in the MIAM
Rules (see Chapter 3 to Part 3 of the Family Procedure Rules), and are explained
in more detail in this Practice Direction.
5.The effect of the MIAM requirement and accompanying Rules is that a person
who wishes to make certain kinds of applications to the court must first attend a
MIAM unless a MIAM exemption or a mediator's exemption applies. These
exemptions are set out in Rule 3.8.
6.When making certain kinds of applications (see paragraphs 12 and 13 below),
an applicant must therefore provide on the application form, or on a separate
form, one of the following
(i) confirmation from a mediator that she or he has attended a MIAM;
(ii) confirmation from a mediator that a 'mediator's exemption' applies; or
(iii) a claim that a MIAM exemption applies. An applicant who claims an
exemption from the MIAM requirement is not required to attach any supporting
evidence with their application, but should bring any supporting evidence to the
first hearing.
7.If an applicant claims a MIAM exemption, the court will issue proceedings but
will inquire into the exemption claimed, either at the stage at which the case is
allocated or at the first hearing. At the first hearing, the court may review any
supporting evidence in order to ensure that the MIAM exemption was validly
claimed. As set out in more detail below, if a MIAM exemption has not been
validly claimed, the court may direct the applicant or the parties to attend a
MIAM, and may adjourn proceedings for that purpose.
8.The adversarial court process is not always best suited to the resolution of
family disputes. Such disputes are often best resolved through discussion and
agreement, where that can be managed safely and appropriately.
9.Family mediation is one way of settling disagreements. A trained mediator can
help the parties to reach an agreement. A mediator who conducts a MIAM is a
qualified independent facilitator who can also discuss other forms of dispute
resolution if mediation is not appropriate.
10.Attendance at a MIAM provides an opportunity for the parties to a dispute to
receive information about the process of mediation and to understand the
benefits it can offer as a way to resolve disputes. At that meeting, a trained

mediator will discuss with the parties the nature of their dispute and will explore
with them whether mediation would be a suitable way to resolve the issues on
which there is disagreement.

11.In accordance with section 10 of the 2014 Act, and Rule 3.6, the proceedings
to which the MIAM requirement applies are the private law proceedings relating
to children listed in paragraph 12 and the proceedings for a financial remedy
listed in paragraph 13 below.
12.(1) The private law proceedings relating to children referred to in paragraph
11 are proceedings for the following orders, unless one of the circumstances
specified in sub-paragraph (2) applies
(a) a child arrangements order and other orders with respect to a child or
children under section 8 of the Children Act 1989;
(b) a parental responsibility order (under sections 4(1)(c), 4ZA(1)(c) or 4A(1)(b)
of the Children Act 1989) or an order terminating parental responsibility (under
sections 4(2A), 4ZA(5) or 4A(3) of that Act);
(c) an order appointing a child's guardian (under section 5(1) of the Children Act
1989) or an order terminating the appointment (under section 6(7) of that Act);
(d) an order giving permission to change a child's surname or remove a child
from the United Kingdom (under sections 13(1) or 14C of the Children Act 1989);
(e) a special guardianship order; and
(f) an order varying or discharging such an order (under section 14D of the
Children Act 1989).
(2) The circumstances referred to in sub-paragraph (1) are that the proceedings
(a) are for a consent order;
(b) are for an order relating to a child or children in respect of whom there are
ongoing emergency proceedings, care proceedings or supervision proceedings;
or
(c) are for an order relating to a child or children who are the subject of an an
emergency protection order, a care order or a supervision order.
13.(1) The proceedings for a financial remedy referred to in paragraph 11 are
proceedings for the following orders, unless one of the circumstances specified in
sub-paragraph (2) applies
(a) the following financial orders
(i) an order for maintenance pending suit;
(ii) an order for maintenance pending outcome of proceedings;
(iii) an order for periodical payments or lump sum provision as mentioned in
section 21(1) of the Matrimonial Causes Act 1973, except an order under section
27(6) of that Act;

(iv) an order for periodical payments or lump sum provision as mentioned in

paragraph 2(1) of Schedule 5 to the Civil Partnership Act 2004, made under Part
1 of Schedule 5 to that Act;
(v) a property adjustment order;
(vi) a variation order;
(vii) a pension sharing order; or
(viii) a pension compensation sharing order;
(b) an order for financial provision for children (under Schedule 1 to the Children
Act 1989);
(c) an order for financial provision in a case of neglect to maintain (under section
27 of the Matrimonial Causes Act 1973 or under Part 9 of Schedule 5 to the Civil
Partnership Act 2004);
(d) an order for alteration of a maintenance agreement (under section 35 of the
Matrimonial Causes Act 1973 or under paragraph 69 of Schedule 5 to the 2004
Act);
(e) an order for financial provision for failure to maintain for parties to a marriage
and children of the family (under Part 1 of the Domestic Proceedings and
Magistrates' Courts Act 1978 or an order under Schedule 6 to the Civil
Partnership Act 2004); and
(f) an order for special protection for respondent in certain separation cases
(under section 10(2) of the Matrimonial Causes Act 1973 or under section 48(2)
of the Civil Partnership Act 2004).
(2) The circumstances referred to in sub-paragraph (1) are that the proceedings
(a) are for a consent order; or
(b) are for enforcement of any order made in proceedings for a financial remedy
or of any agreement made in or in contemplation of proceedings for a financial
remedy.
MIAM exemptions
- Domestic violence
20.
(1) The forms of evidence referred to in Rule 3.8(1)(a) are
(a) a relevant unspent conviction for a domestic violence offence;
(b) a relevant police caution for a domestic violence offence given within the
twenty four month period immediately preceding the date of the application;
(c) evidence of relevant criminal proceedings for a domestic violence offence
which have not concluded;
(d) a relevant protective injunction which is in force or which was granted within
the twenty four month period immediately preceding the date of the application;

(e) an undertaking given in England and Wales under section 46 or 63E of the
1996 Act (or given in Scotland or Northern Ireland in place of a protection
injunction)
(i) by any prospective party in relation to another prospective party; and
(ii) within the twenty four month period immediately preceding the date of the
application;
(f) evidence that a prospective party is on relevant police bail for a domestic
violence offence;
(g) a letter from any person who is a member of a multi-agency risk assessment
conference confirming that
(i) any prospective party was referred to the conference as a victim of domestic
violence; and
(ii) the conference has, within the twenty four month period immediately
preceding the date of the application, put in place a plan to protect that party
from a risk of harm by another prospective party;
(h) a copy of a finding of fact, made in proceedings in the United Kingdom within
the twenty four month period immediately preceding the date of the application,
that there has been domestic violence giving rise to a risk of harm by one
prospective party to another prospective party;
(j) a letter or report from a health professional who has access to the medical
records of a prospective party confirming that that professional, or another
health professional
(i) has examined any prospective party in person within the twenty four month
period immediately preceding the date of the application; and
(ii) was satisfied following that examination that that party had injuries or a
condition consistent with those of a victim of domestic violence;
(j) a letter from a social services department in England or Wales (or its
equivalent in Scotland or Northern Ireland) confirming that, within the twenty
four month period immediately preceding the date of the application, any
prospective party was assessed as being, or at risk of being, a victim of domestic
violence;
(k) a letter or report from a domestic violence support organisation in the United
Kingdom affirming
(i) that any prospective party was, within the twenty four month period
immediately preceding the date of the application (and, where relevant, that
period commences with the date on which that prospective party left the refuge),
admitted to a refuge established for the purpose of providing accommodation for
victims of, or those at risk of, domestic violence;
(ii) the dates on which that prospective party was admitted to and, if applicable,
left the refuge; and
(iii) that that party was admitted to the refuge because of allegations by that
party of domestic violence;

(l) a letter or report from a domestic violence support organisation in the United
Kingdom confirming
(i) that a prospective party was, within the twenty four month period
immediately preceding the date of the application, refused admission to a refuge
established for the purpose of providing accommodation for victims of, or those
at risk of, domestic violence, on account of there being insufficient
accommodation available in the refuge; and
(ii) the date on which that prospective party was refused admission to the
refuge;
(m) a letter or report from
(i) the person to whom the referral described below was made;
(ii) the health professional who made the referral described below; or
(iii) a health professional who has access to the medical records of a prospective
party,
confirming that there was, within the twenty four month period immediately
preceding the date of the application, a referral by a health professional of a
prospective party to a person who provides specialist support or assistance for
victims of, or those at risk of, domestic violence;
(n) a relevant domestic violence protection notice issued under section 24 of the
Crime and Security Act 2010, or a relevant domestic violence protection order
made under section 28 of that Act, against a prospective party within the twenty
four month period immediately preceding the date of the application; or
(o) evidence of a relevant court order binding over a prospective party in
connection with a domestic violence offence, which is in force or which was
granted within the twenty four month period immediately preceding the date of
the application.
MIAM exemption Bankruptcy
21.The forms of evidence referred to in Rule 3.8(1)(h) are
(a) petition by the prospective applicant for a bankruptcy order;
(b) petition by a creditor of the prospective applicant for a bankruptcy order; or
(c) a bankruptcy order in respect of the prospective applicant.
If neither party is eligible for Legal Aid then the mediator will agree with the
prospective parties how the cost of MIAM attendance is to be met.

Practice Standards

National mediator accreditation standards

Application

1. These Practice Standards apply to any mediator acting as a third party to

support two or more individuals or entities to manage, settle or resolve disputes,
or to form a future plan of action through a process of mediation and who
voluntarily decides to become accredited under the National Mediator
Accreditation Scheme. Practitioners who act in these roles are referred to in
these Practice Standards as mediators. A mediator supports participants in a
mediation process to identify, clarify and explore issues, to generate and
consider options and to make decisions about future actions and outcomes. The
Practice Standards are intended to govern the relationship of mediators with the
participants in the mediation, their professional colleagues, courts and the
general public so that all will benefit from high standards of practice in
mediation.
2. The Practice Standards:
(a) specify practice and competency requirements for mediators; and
(b) inform participants and others about what they can expect of the mediation
process and mediators.
3. Mediators voluntarily accredited under the Australian National Mediator
Standards must comply with the Approval Standards as well as the Practice
Standards. These Practice Standards should be read in conjunction with the
Approval Standards.
4. There are a range of different mediation models in use across Australia. As
noted in the Approval Standards, mediation can take place in all areas where
decisions are made. For example, mediation is used in relation to commercial,
community, workplace, environmental, construction, family, building, health and
educational decision making. Mediation may be used where there is conflict or
may be used to support future decision making. Mediators are drawn from
diverse backgrounds and disciplines. Mediation may take place as a result of
court or tribunal referral, pre-litigation schemes, through industry schemes,
March 2012 Page 2
community-based schemes as well as through private referral, agency, self or
other referral. These Practice Standards set out minimum practice requirements
and recognise that some mediators who practise in particular areas or with
particular models may choose to develop or comply with additional standards or
requirements. Mediators may practise as solo mediators or may co-mediate
with another mediator.
5. Where mediators practise under existing legislative frameworks and there is a
conflict between the requirements of these Practice Standards and any
legislation, the respective legislative requirements will override those of the
Practice Standards to the extent of any inconsistency.
2 Description of a mediation process
1. A mediation process is a process in which the participants, with the support of
a mediator, identify issues, develop options, consider alternatives and make
decisions about future actions and outcomes. The mediator acts as a third party
to assist the participants to reach their decision.

2. Mediation processes are not a substitute for individual or organisational legal

and/or other expert advice, or individual counselling or therapy. Mediation
processes may not be appropriate for all disputants or all types of disputes.
3. The goal of a mediation process is agreed upon by the participants with the
assistance of the mediator. Examples of goals may include assisting the
participants to make a wise decision, to clarify the terms of a workable
agreement and/or future patterns of communication that meet the participants
needs and interests, as well as the needs and interests of others who are
affected by the dispute.
4. The mediation process may:
(a) assist the participants to define and clarify the issues under con-sideration;
(b) assist participants to communicate and exchange relevant in-formation;
The purpose of a mediation process is to maximise participants decision making.
March 2012 Page 3
(c) invite the clarification of issues and disputes to increase the range of options;
(d) provide opportunities for understanding;
(e) facilitate an awareness of mutual and individual interests;
(f) help the participants generate and evaluate various options; and
(g) promote a focus on the interests and needs of those who may be subject to,
or affected by, the situation and proposed options.
5. Mediators do not advise upon, evaluate or determine disputes. They assist in
managing the process of dispute and conflict resolution whereby the participants
agree upon the outcomes, when appropriate. Mediation is essentially a process
that maximises the self-determination of the participants. The principle of selfdetermination requires that mediation processes be non-directive as to content.
6. Some mediation processes may involve participants seeking expert
information from a mediator which will not infringe upon participant selfdetermination. Such information is deemed to be consistent with a mediation
process if that information is couched in general and non-prescriptive terms, and
presented at a stage of the process which enables participants to integrate it into
their decision making. Such information might include the provision of general
information and a reference to available material that could assist the
participants. For example, a referral to resources that could be used by parents
in a family dispute to determine the impact of options upon children or other
family members.
7. Some mediators may use a blended process model whereby they provide
advice. These processes are sometimes referred to as advisory mediation,
evaluative mediation or conciliation. Such processes may involve the
provision of expert information and advice, provided it is given in a manner that
enhances the principle of self-determination and provided that the participants
request that such advice be provided. Mediators who provide expert advice are
required to have appropriate expertise (see Approval Standards at Section 5(4))
and to obtain the consent of participants prior to providing any advisory process.

Mediation centre in England

1) National family mediation
http://www.nfm.org.uk/
2) Family mediation council
http://www.nfm.org.uk/
https://www.justice.gov.uk/downloads/courts/mediation2/family-mediationleaflet.pdf
**Code of practice
http://www.familymediationcouncil.org.uk/us/code-practice/
3) The mediation centre
http://www.themediationcentre.co.uk/site/mediation/family_mediation_stafford/
4) the mediation centre uk
http://mediationcentreuk.com/services.html

Other reference sources

http://books.google.com.my/books?
id=uUAfAQAAQBAJ&pg=PA177&dq=standard+code+of+practice+for+mediation
+
+in+england&hl=en&sa=X&ei=JFkiVK3FO9DnuQT3_oHQCg&ved=0CFcQ6AEwB
w#v=onepage&q=standard%20code%20of%20practice%20for%20mediation
%20%20in%20england&f=false
http://books.google.com.my/books?
id=tgoHEg49FooC&pg=PA126&dq=standard+code+of+practice+for+mediation
+
+in+england&hl=en&sa=X&ei=JFkiVK3FO9DnuQT3_oHQCg&ved=0CGAQ6AEwC
Q#v=onepage&q=standard%20code%20of%20practice%20for%20mediation
%20%20in%20england&f=false
http://books.google.com.my/books?
id=DUD7AwAAQBAJ&pg=PA234&dq=rules+and+regulations+for++mediation+
+in+england&hl=en&sa=X&ei=WVsiVIehKoWjugSvYLQBg&ved=0CEMQ6AEwBA#v=onepage&q=rules%20and%20regulations
%20for%20%20mediation%20%20in%20england&f=false