Competition complaint over family mediation

Topics: Family and children,Regulation and compliance

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A solicitor has referred the Family Mediation Council to the Competition and Markets Authority over concerns that guidelines introduced at the end of last year will block new entrants from mediation.

Changes to the Family Procedure Rules introduced in December mean that in order to conduct a mediation information and assessment meeting (MIAM), mediators must be accredited by the Family Mediation Council.

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Paul Summerbell, head of the family department at Eastbourne firm Warren’s Law and Advocacy, told the Gazette he has filed a formal complaint to the CMA.

His complaint says that MIAMs are the primary channel for obtaining mediation clients and the mandatory requirement for MIAMs means that anyone wanting to provide mediation must register with the FMC.

He notes that this is in the context of an unregulated market, where registration as a mediator is not compulsory.

To gain accreditation with the FMC, mediators need to provide examples of three cases, originating more than two years ago. This, Summerbell says, prevents anyone who has started mediation work only in the past two to three years from registering.

He told the Gazette: ‘They are effectively protecting the old guard.’

Summerbell said that the move has affected solicitors in particular because many have started to provide mediation only since the introduction of the Children and Families Act 2014, which first made MIAMs mandatory.

He added: ‘The FMC have in effect acted against competition law.’ Even if it did not, ‘this amounts to a restrictive practice and is essentially a boycott which cannot be justified on public policy grounds’.

A spokesman for the FMC said that although mediators need accreditation in order to conduct MIAMs in cases where a couple wants to proceed to court, the new rule would not prevent anyone from conducting mediation in other circumstances. He added that the policy would be reviewed throughout the year.

Readers' comments (8)

  • There is a lack of competition in the civil mediation world too..

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  • What about the court of appeal mediation scheme being run exclusively by CEDR?

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  • Then become accredited!
    The system was set up so that the general public can know thatcher are going to a mediator who knows what they're doing. Just because some one is a Solicitor does not mean they are automatically a good mediator.
    Stop whinging and become accredited!

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  • Should I volunteer to mediate in this dispute?

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  • MIAMs are a crucial meeting that are now formally part of the family judicial process.
    The reason for a party to attend a MIAM with an accredited FMC mediator is to ensure the correct information is provided on an impartial basis and to offer solutions outside of court. My service at Wynn Mediation also offers legal aid. This is a highly acclaimed professional standard and I am as proud of this as I am of being a qualified solicitor.
    I qualified as a mediator many years ago. I supervise other family mediators to encourage and support them to mediate appropriately and to build up their skills. It has taken many years to reach the standards required of an accredited mediator. It requires years of practice to reach this standard of professionalism and it is a different skill set from our training and expertise as solicitors. Many solicitors and barristers make wonderful mediators. This is a fair playing field.
    We deal with vulnerable people who need an impartial discussion in order to find out their options. There should be no room for sour grapes.

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  • There have, understandably, been some predictably hostile reactions to the report but, on balance, it may have been worth sticking my head above the parapet. There is certainly a substantial difference of opinion among many - no unanimity here it seems. Certainly, there is some concern over the situation. Anti-competitive measures are not in anyone's interest particularly the consumer. I would have thought that an examination of the situation by the CMA would be welcomed. The law is there to ensure fair play and an even hand to all including the consumer.

    The real issue is the EU directive and the governments obligation to provide a code of practice by the 21st May 2011 combined with the previous decisions in competition law.
    EC regulation and the DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008, article 5 and the General Insurance Standards Council and the Institute of Independent Insurance Brokers v Director General of Fair Trading (17.09.01 – unreported).

    I may have misunderstood the situation legally speaking but I am sure the CMA will clarify.

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  • FMC accreditation is there to ensure that standards are maintained and, in my view is a minimum standard bearing in mind the highly skilled work that mediators have to carry out during MIAMs to ensure that clients are suitable to engage in a tough process. Also, I think you may find that it is 3 mediations within 2 years from the date of application for accreditation.

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  • Paul, part 4.2 of the FMC guidance for those applying for accreditation specifically states that the cases submitted in the portfolio should be no more than two years old unless there are special circumstances. This appears to be the opposite of what you are reported as saying and surely would not operate as a bar to new mediators.

    I'm sure you have seen it but, just in case here is a link to the document:
    www.familymediationcouncil.org.uk/wp-content/uploads/2015/12/FMCA-letter-and-guidelines-V1-3-Final.docx

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