Why can’t my mediator tell me the reasons why they have assessed mediation as unsuitable?
When people come to mediation, they often do so with the hope of avoiding court proceedings and finding a constructive way forward. For many families, mediation can provide a safe and supportive environment in which to make decisions together.
However, mediation is not always appropriate. One of the key responsibilities of a family mediator is to assess whether mediation is suitable for the particular circumstances of the people involved. This assessment is made after the Mediation Information and Assessment Meeting (MIAM) and is kept under review if mediation progresses.
Sometimes, after meeting with each person, the mediator may decide that mediation is not suitable. When this happens, people understandably want to know why. Yet the mediator is not able to share their reasons with either person. This can feel frustrating or disappointing, but it is an essential part of how mediation works.
Confidentiality is central to Mediation
When mediation is assessed as unsuitable, mediators cannot explain their decision in detail to either person. This is not because they want to be unhelpful, but because they are bound by the principle of confidentiality.
- Everything you share in your MIAM is confidential (unless there are safeguarding concerns).
- Mediators cannot pass on what you have said at the MIAM to the other person.
When each person attends their MIAM, they are encouraged to speak openly with the mediator about their circumstances, any concerns they may have, and what they hope to achieve. This openness allows the mediator to make a careful and balanced assessment of whether mediation is safe and appropriate.
Confidentiality allows you to be open and honest with the mediator, knowing your words won’t be repeated. Without it, many people would not feel able to speak freely.
If people thought that what they shared privately would later be passed on to the other person, they might not feel able to be as open. The whole purpose of the MIAM would be undermined.
Why Mediators sometimes decide Mediation is not suitable
There are a number of reasons why a mediator may decide that mediation is not suitable. For example, it may be because:
- There are concerns about safety or risk of harm.
- There are significant imbalances of power that cannot be managed within the mediation process.
- One or both people do not wish to mediate, or are unable to engage in the process constructively.
- There are practical or legal issues that mean mediation is unlikely to be effective.
The exact reasons will vary from case to case, but what is important to remember is that the mediator will only reach this decision after giving careful consideration to all the information shared.
How this links to Court Applications
If mediation is assessed as unsuitable, the mediator will provide the appropriate court form (usually a C100 or Form A), which confirms that mediation has been considered but has not gone ahead. This form allows either person to make an application to court if that is the route they wish to take.
It is important to note that the form does not set out the reasons why mediation was unsuitable. It simply records that mediation has been explored and that the statutory requirement to consider mediation has been met.
Recognising the positives
Even when mediation does not proceed, attending a MIAM can still be valuable. It provides each person with information about their options, a chance to reflect on whether mediation might be right for them, and an opportunity to raise any concerns confidentially with a trained professional.
Sometimes, mediation may not be suitable at the present time but could become possible in the future if circumstances change.
In summary
Mediators have a duty to ensure that mediation is safe, fair, and appropriate. If they decide that mediation is unsuitable, they cannot share their detailed reasons because the information given in each MIAM is confidential.
This can be disappointing, but it is an important safeguard. Confidentiality ensures that people can speak openly with the mediator, knowing their words will not be shared. It also protects the integrity of the process and ensures that mediators remain impartial.
For further information, you may wish to refer to the Family Mediation Council’s Code of Practice which sets out the principles that all mediators must follow.
If you’d like to know more about how mediation works, or you’re wondering if it might be right for you, we’d be happy to help.