When abuse is part of the picture, the first question is never which process to use. It is whether everyone is safe.
On 6 November the judiciary for England and Wales published guidance for a new Domestic Abuse Listing Scheme, and the detail in it is striking. In the magistrates’ courts, suitable cases should see case management dealt with at the first hearing and a trial listed within eight to twelve weeks. In the Crown Court, where the defendant is on bail and the trial is expected to last no more than three days, a plea and trial preparation hearing should take place within four weeks of the case being sent, with the trial concluding twelve to fourteen weeks after that. The scheme covers violence, controlling or coercive behaviour, breaches of protective orders, harassment and stalking, criminal damage and certain financial and image based abuse. Sexual offences and cases with more than one defendant sit outside it.
This is criminal work rather than family work. It will not decide where children live, how a pension is shared, or what happens to the family home. But it matters a great deal to the people who come to see us, because someone living through a criminal case is very often trying to sort out a separation at the same time, with the same person, in the same week.
It also raises a question we are asked often, usually quietly, and usually right at the end of a first phone call: if there has been abuse, is mediation still possible?
The honest answer is sometimes, and never automatically
Mediation works only because it is voluntary. Everything about it, from agreeing the agenda to signing a memorandum of understanding, rests on both people being able to say no without fear of what happens next. Where one person is frightened of the other, that freedom is not there, and no amount of careful process design puts it back. This is why domestic abuse and family mediation have to be weighed together rather than one after the other, and why a mediator’s first job is not to sell mediation but to work out honestly whether it is the right route at all.
Sometimes the answer is a clear no. Sometimes it is yes, with adjustments. Sometimes it is not yet. All three are proper answers, and a good mediator will give you whichever one is true.
What happens before anyone sits in a joint meeting
Nobody is put in a room with their former partner on the strength of a form. Every case begins with a Mediation Information and Assessment Meeting, usually shortened to MIAM, and that meeting is held with each of you separately and in confidence. It is a conversation, not a test you can fail.
In it we ask direct questions, because vague ones are no use to anybody. The things we want to understand include:
- whether you feel able to speak freely with the other person in the same conversation, or even in the same building
- whether there has been physical violence, threats, or behaviour that has left you afraid
- whether one of you has controlled the money, the car, the phone, or who you see
- whether there are protective orders, police involvement, or criminal proceedings running alongside
- what practical changes would make a real difference, from the timing of appointments to who else is nearby
Nothing you tell us in that meeting is passed to the other person without your agreement. If you decide mediation is not for you, that decision is yours, and you do not have to justify it to us or to anyone else.
You do not have to mediate in order to move forward
There is a widespread belief that mediation is now compulsory before court. It is not. Attending a MIAM is normally expected before making most family applications, but there are exemptions, and domestic abuse is one of them. Where there is evidence of abuse you can tell the court that you are exempt. Equally, if you attend a MIAM and the mediator concludes that mediation is not suitable, the mediator signs the court form to confirm it, and that is the end of it. Choosing court because court is the safer option is not a failure of nerve. Our frequently asked questions set out how the forms work in plain terms.
When mediation can work, with the right adjustments
Where abuse sits in the past rather than the present, or where the worry is pressure and imbalance rather than fear, there are practical ways to even things up. Shuttle mediation keeps the two of you in separate rooms, or in separate online meetings, with the mediator moving between you so that you never have to negotiate face to face. Arrival and leaving times can be staggered. Sessions can be held entirely online. You can have a solicitor advising you between sessions, or a trusted person waiting nearby. Financial disclosure can be exchanged on paper first, so that nothing is sprung on anyone in the moment. There is more about how we structure sessions on our mediation page.
None of these are favours. They are ordinary tools of the trade, and using them is often what makes a workable agreement possible in a situation where a courtroom would have made matters worse.
If you are in danger right now
Please do not wait for an appointment with us. In an emergency, call 999. The National Domestic Abuse Helpline, run by Refuge, is free and open twenty four hours a day on 0808 2000 247. Refuge said earlier this month that while it welcomed the fifteen million pounds announced in the Budget for work to tackle misogyny, specialist domestic abuse services remain stretched after years of underfunding, with closures and long waiting lists. Office for National Statistics figures cited alongside that warning put the number of people reporting domestic abuse in the year to March at around 4.7 million. If the first service you ring is full, please ring another. You are not being a nuisance.
Where to start if you are not sure
You do not need to have decided anything before you speak to us. An individual MIAM is a private conversation about your circumstances and your options, including the options that are not mediation. Our prices are published, so you will know what things cost before you commit to anything, and if you would rather talk it through first, the number is on our contact page.
Faster criminal hearings are genuinely good news for victims, and the new scheme deserves the attention it is getting. What it cannot do is answer the quieter questions about children, money and the next twelve months. Those answers still have to be built, and they are built best when everyone involved is safe enough to think clearly.
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