Resolution Good Practice Guides
https//resolution.org.uk/membership/our-code-of-practice/good-practice-guides/
Under English law mediators are required to receive professional training and are normally qualified lawyers and are members with Family Mediation Council (FMC) or Resolution. This is an important aspect now in publicly funded cases and it should also be considered in private cases: divorce, finances and children proceedings. Here is a useful link by the Ministry of Justice to assist with understanding the process of mediation.
What is Mediation?
Mediation is an effective way of resolving disputes without the need to attend court. It involves an independent third party – a mediator – who helps both sides to reach an agreement. Mediation is a flexible process that can be used to settle disputes in a whole range of situations, particularly, in family law: marital breakdown, divorce, financial settlement and issues relating to children. Mediation is becoming increasingly a cost effective, non-acrimonious and non-confrontational approach to settling disputes in England and Wales since 2011 (part of the new Family Procedural Rules 2010 and it is important that parties consider this option (a requirement to attend MIAM), except domestic violence cases are exempt).
What is a MIAM?
The first meeting with a mediator is often called a Mediation Information & Assessment Meeting or MIAM. Whether it’s called a MIAM or a first meeting, it will cover the same things.
The MIAM will last about an hour, and will give you an opportunity to tell the mediator about your situation, and the issues that need to be decided. The mediator will tell you about the mediation process and other options for reaching agreements.
At the end of the meeting, the mediator will tell you whether your case is suitable for mediation, and you can decide whether you want to proceed with mediation or explore another option for resolving issues. The mediator can also give you information about other services which provide help and support.
If you agree, the mediator might also refer you to other organisations who can help you, such as those who can offer counselling, debt advice, or information about how to parent co-operatively after separation, where these are relevant.
If you have children who are over the age of 10, the mediator will discuss with you their rights to have their views taken into account. This is an important part of the process designed to support the health and well-being of the children as well as to help parents come to good workable decisions. Research shows this part of the process brings real benefits to your children and to parents as they make decisions for the family.
Contact an FMC Registered Mediator to arrange an information and assessment meeting – you can find one using the search facility here.
What Happens after the First MIAM?
If everyone agrees to try mediation then an appointment is made for your first mediation session.
If you decide not to continue into mediation, or it’s not suitable in your circumstances, then the mediator will have explained the range of other options for resolving things as part of the information and assessment meeting or MIAM. If you decide to make an application to court to resolve an issue discussed at the MIAM, then you can ask the mediator to sign the court form, as long as you attended the MIAM within the last four months.
Family Mediation Council can help find a local mediator call: 01707 594055
Resolution is another organisation that can help find resolution accredited mediators: 020 3841 0300
Do I have to attend MIAM?
f you want to take your case to court then, in most cases, you will have to attend a MIAM before making an application. There are only a few specific circumstances where this requirement does not apply (mainly involving domestic abuse). This is because court action should be used only where the protection of the law is required or, as a last resort when alternative ways of resolving things haven’t worked.
If the court has told you that your ex has made an application to resolve issues related to children or finances following divorce or dissolution of a civil partnership, the judge will also expect you to have attended a MIAM, unless the same specific circumstances apply.
Going to a MIAM isn’t the same as going to Mediation. A MIAM will help you understand the options available to sort out the issues that need to be resolved, and to choose the best option.
Only mediators accredited by the Family Mediation Council can sign a court form to say you have been to a MIAM. An accredited mediator is known as “FMCA”.
You can find you nearest FMCA mediator here, by entering your postcode and clicking ‘Qualified to sign court forms’.
This flowchart from Resolution sets out some of the other options that a mediator may discuss with you.
Islamic Mediation
In Islamic law, the procedure is very different, and we will soon be posting the scholars that specialize and work internationally with countries where Muslims are a minority such as the UK, North America and Canada.
The Qur’an states the following:
‘If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from her's; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All-Knower, Well-Acquainted with all things.’ Surah An-Nisa (Q.4:35)
(Muhsin Khan translation (2015)
In brief, there are traditional shari’a models which are very legalistic and non-legalistic models (all are based on the Qur’anic model).
ISLAMIC MEDIATION PROCESS
Islamic Mediation is based on the following principles:
The process must be fair to all parties with equal representation from each side.
The process needs collaborative problem solving between those in dispute,
Every effort to aim for a ‘win/win’ situation which is acceptable to all parties
A focus on the future, with emphasis on rebuilding relationships or recognizing that agreeing to disagree is also acceptable but in a civilized manner
Respect for all concerned must be in the forefront of all discussions and dealing.
The past issues may be part of discussion without apportioning blame for what has happened in the past
A belief that acknowledging feelings as well as facts allows participants to let go of their anger and move forward.
Re-affirming the belief that Allah is watching over everything.
Prophet Mohammad (pbuh) used to encourages and enable all parties to:
Think on a common-sense approach to resolve their issues that is beneficial to all including the families and the community at large
Take a step back and look inwards for their own short comings and behavior in contributing to the issues and think about how they could put the situation right
to come up with their own practical solution which will benefit all sides
allows people to rebuild relationships as they work together to find a common ground for resolution
Reach an agreement that is their own
Islamic mediation takes place at Shari’a Councils, Muslim Arbitration Tribunal and some Mosques.
Steps in Islamic Mediation:
Mediation is a flexible process that is used in a number of different situations. In most types of mediation, the following steps take place:
The role of a mediator usually falls on an Imam, community elder or professional who is trained and experienced in the mediation process. He or she must be unbiased and have good observation and listening skills.
If one person asks for mediation, all those involved are contacted to check if they agree to take part.
Anyone can withdraw at any stage of the process if they want to.
Mediator must explain the mediation process along with the rights and obligations of each party or person.
Based on the issue and severity the mediator(s) might decide to meet with each party individually. The mediators will ask each of them to explain how they see the issue and current situation, and how they would like it to be in the future. They will also ask what suggestions the parties have for sorting out the disagreement.
Information shared during the mediation is private and confidential (with the exception of disclosure of serious physical, mental or sexual abuse that he/she is obligated by law to report) unless otherwise agreed.
If both parties agree to come to a joint meeting, the following steps take place:
Mediators will explain the structure of the meeting and ask everyone to agree to some basic rules, such as respect for each other, listening without interrupting and not using offensive remarks or abusive language.
Each person will then have a chance to talk about the problem as it affects him or her. The mediators will try to make sure that everyone understands what each person has said, and allow them to respond.
They will then help both parties identify and define the issues that need to be resolved. Very often this leads to solutions that no one had thought of before, helping parties to reach an agreement.
If it is a complicated issue then the mediator may facilitate each party to find common grounds that can be easily resolved in the dispute and initiate the process of addressing them first.
The agreement is usually written down, and signed by both parties and the mediators. However, it is not legally binding and may not be enforced in court unless the parties decide to make it a legally binding contract.
The agreement does not affect anyone’s legal rights either, allowing the freedom to find an alternate way of dealing with the dispute at any time.
Role of the Mediator:
The role of the mediator is based on the following principles:
Must be impartial during the mediation process, and must have no stake in the outcome of the process (some mediators are not impartial in practice)
Mediators facilitate and help the parties identify their needs, clarify issues, explore solutions and negotiate their own agreement.
Mediators do not advise those in dispute, but help and facilitate the parties to communicate with one another.
Must be respected elder or a professional or experienced in the field
When does mediation work?
One of the strengths of mediation is that people are able to solve their own difficulties. This works best when those in dispute are:
willing to take part
prepared to be as honest and open as they can about the situation and the part they have played in it
want to work cooperatively with the other person to find a solution
would like to continue to have a relationship in the future as neighbours, colleagues or family, for example
people feel safe and there is no threat of physical violence.
Mediation works less well when:
people feel coerced into taking part
they have no reason to work out a future relationship
there is a threat of physical violence
one party is very intimidating for the other
there is a need for a public/legal judgement.
Here are a few useful links to Islamic Shari’a Council providing Islamic mediation (this can be done by a female scholar too)
https://www.islamic-sharia.org/counselling/
https://theislamiccouncil.co.uk
