The coronavirus pandemic means that mediators have changed the way in which they work for the time being. The FMC is responding as quickly as it can to issues that have arisen as a result. We try below to bring together information relevant to mediators at present.
The FMC published Guidance to Online Mediation in 2016. This can be found here.
Please also see the FMSB’s Guidance on Information and Assessment Meetings During Coronavirus Social Distancing Period.
The FMSB has made a number of temporary regulatory changes due to the coronavirus crisis. Please see here for more details.
The FMSB has also made temporary amendments to portfolio requirements. These were initially made in May 2020, and extended by the FMSB in November 2020 until further notice. They are as follows:
1. Mediators can submit commentaries for cases mediated via online video conference as part of their portfolio.
2.Mediators can observe their PPC or another FMCA mediator via online video conference and use this observation for the purposes of the portfolio.
3.Mediators can start to mediate before observing their PPC or another FMCA mediator. NB Mediators are still required to adhere to the related standard which says For their first case as a sole or lead mediator, (a) have a pre-case discussion with their PPC before starting to mediate or to assess clients’ suitability for mediation, and (b) hold a post-case review with their PPC. In the pre-case discussion, the PPC will if necessary identify any additional support that the mediator needs before starting the first session.
4.Mediators can be observed by their PPC (or another FMCA mediator in accordance with the rules) via online video conference for the purposes of the portfolio.
5.Mediators who have completed their portfolios except for:
a) being observed by their PPC (or another FMCA mediator in accordance with the rules); and/or
b) attending a one-day Child Inclusive Mediation Awareness and Understanding Course
may submit their portfolios to the FMC for assessment.
These incomplete portfolios will be assessed. If the remaining usual criteria are met, the mediator may be awarded provision accreditation. The outstanding documentation may then be submitted and no resubmission fee will be charged if this is the only documentation which the assessor says is outstanding upon awarding provisional FMCA. The additional information will then be assessed/checked and if this is sufficient, full FMCA will be awarded.
Portfolios should include evidence of all competencies in the usual way, irrespective of whether work has taken place online or in person
All other requirements for mediators working towards accreditation remain unchanged.
HMCTS and the Courts
The President of the Family Division has issued Guidance on Compliance with Family Court Child Arrangement Orders which can be found here.
HMCTS has now formally confirmed that courts will accept an emailed copy of the FM1 or the mediator’s certificate at page 9 of the C100 application form and said that guidance will be provided to family court staff on this point.
Some mediators were concerned that the four-month period for which a MIAM certificate is valid would need to be extended. Courts are continuing to accept applications for private family law matters, and so an extension is not necessary.
The Legal Aid Agency continues to update its response to the coronavirus crisis – please see here for up to date information: https://www.gov.uk/guidance/coronavirus-covid-19-legal-aid-agency-contingency-response
Guidance has been published covering the issue of obtaining signatures, the LAA confirming that electronic signatures are satisfactory. The LAA are looking to providing a Means7 form that could be electronically signed without Adobe. In the event that an electronic signature could not be obtained an email from the client showing the following is satisfactory:
- an intent to take up the offer of legally aided family mediation (not just the expectation),
- plus the client’s name with the intention that it is considered to be a signature, which should be contained in the body of the email.
FMC suggests the mediation provider sends an email to the client which could say:
- I attach the form for the assessment of eligibility for legal aid which you must read. Please ensure that you check your contact information and especially the financial information provided by you. If any of it is incorrect then please let me know.
- If the contact information and financial information is right, then please read the declarations at the end of the form.
- If you are happy that the form is accurate and agree that you want your email to be treated as your signature then please copy and paste the following wording into an email to me:
“I have checked the legal aid form sent to me and have read the declarations on that form. I am happy for this email to be taken as my electronic signature and I understand that I am now applying for legal aid for family mediation.”
The client must then copy and paste the above in to an e-mail to you with their name also typed in to the body of the email.
Whatever route to obtain the signature is obtained, the reason for this should be recorded on the case file.
Whilst the has LAA indicated it would be as flexible as possible, there is no indication that it is changing the rule that a Means7 must be signed in the presence of the mediator, therefore the safest course of action is to get the assessment of means and Means7 form signed before the MIAMs take place.
Guidance has been issued to indicate that remote supervision is allowed.
File reviews guidance has not yet been issued but we understand that this will be issued shortly. FMC has requested that if mediators are unable to provide files to supervisors, this file review requirement will be suspended.
The requirement still stands that if contract work is not being provided from a named office the local area contact manager needs to be notified.
There has been some confusion about the disbursements that the LAA will reimburse in relation to the costs of online mediation. We have asked for – and the LAA has agreed to – clarify what can be reclaimed, in writing. In the meantime the LAA has said that this does not include, for example, Zoom subscriptions, which it considers is an administrative cost.
On-Line MIAMs and Mediation
The LAA has confirmed that video MIAM’s and mediation are allowed within the FMC Code of Practice and that in exceptional circumstances telephone MIAM’s and mediation could be undertaken. FMC have issued recent guidance to help clarify what these exceptional circumstances might be.
Changes to Legal Aid Contracts
The LAA has taken steps to bring legal aid contracts for family mediators in line with other civil contracts. Prior to the changes, the contracts required that all applications for legal aid for family mediation be made in person, whereas in other categories practitioners were allowed (for up to 25% of clients) to make applications remotely as standard, and more in exceptional circumstances. Along with the publication of the new contracts, the LAA has confirmed that we are of course all now in ‘exceptional circumstances’ and that – at present – all applications can be made remotely. The LAA has also confirmed that, while the contract changes allow practitioners to obtain a signed application form to legal aid after work has taken place, it is still permissible under the contract to obtain this signed form before work is carried out.
The FMC wrote to the Secretary of State requesting that non-recoverable standard payments be made to mediators with LAA contracts during the coronavirus crisis. This proposal was rejected, pointing providers to the support it is making available to all businesses: https://www.businesssupport.gov.uk/coronavirus-business-support/
We understand however that a number of providers have been offered the opportunity to do this, and so encourage any provider who is interested in switching to standard monthly payments to make a request through their contract manager.
Health and Safety
Some mediators have asked the FMC for health and safety advice about working during the current crisis. The FMC cannot provide such advice, and so mediators are advised to follow government guidelines which are here: https://www.gov.uk/coronavirus. Mediators may also find this tool useful: https://www.gov.uk/coronavirus-business-reopening
The FMC and the FMSB
The FMC is operating as closely to normal as possible, although the FMC and the FMSB’s areas of focus are of course on dealing with coronavirus-related issues, which means that other work may take longer to complete.
The FMC administrative team may be working different hours, which means you may have to leave an answer-phone message or send a voice-mail, rather than speaking to somebody on the phone during our normal office hours, but we will try to get back to you as soon as we can. Please help us by sending e-mails and making payments by bank transfer or online card payment, as opposed to sending any post.