Why do I have to go to family mediation before I can go to court?
Mediation is the Government’s and Courts preferred method of resolving disputes on family matters. So if you have a dispute about finances on a divorce or separation, or if you cannot agree on the parenting arrangements, the courts agree that the best people to try to reach an agreement on the way forward are the people in dispute themselves.
This is especially so where children are involved, it is widely recognised that the people best placed to make a decision regarding the ongoing arrangements about their children are the parents themselves.
Deferring the decision-making process to a third party, who does not know you children as well as you do, should be seen as a last resort. Below we look at a recent judgement on possible sanctions being imposed if you are seen to be using the courts to resolve unnecessary issues.
In our blog “Will it look bad if I refuse to go to mediation?” we look at how the court will want you to have acted responsibly and reasonably at all times, during and before the court become involved in your case. If you are seen by the court to have not acted in such a manner, then the judge can penalise you when it comes to making the actual order itself, or make an order for you to pay the other parties’ legal fees.
The bottom line is you should act reasonably and responsibly at all times in trying to sort out the issues between you. Family Mediation is an important part of showing this to the court.
In his recent judgement published on 25th September 2020, His Honour Judge Wildblood QC made reference to people using the courts for unnecessary private law applications.
He explained that the courts are not the place to resolve ‘unnecessary and disproportionate’ issues. In the judgement he gave examples of recent cases that had been bought before him:
- At which junction of the M4 should a child be handed over for contact?
- Which parent should hold the children’s passports? (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction)
- How should contact be arranged to take place on a Sunday afternoon?
The reason for the published judgement on this case was because an appeal had been lodged requesting five years of medical history for the mother of a two-year old child. The judge explained that what was in the medical history was irrelevant, as whichever child arrangements order was finally made, the mother would spend a substantial amount of time with the child. Her medical history made no difference to this arrangement.
The judge went further though and said:
- Therefore, the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.
He did not say what sanctions would likely be imposed.
In a separate judgement on the 11th March 2021, Justice Mostyn a High Court Judge, awarded legal costs to the applicant and then deducted 50% as she had not attempted to resolve the issue through mediation and showed “no intent negotiate openly and reasonably” outside of court. The full (albeit brief) judgement can be read here.
Mr Justice Mostyn said:
“Litigants must learn that they will suffer a cost penalty if they do not negotiate openly and reasonably.”
“Accordingly, the applicant will be deprived of 50% of the award which I would otherwise have made in her favour.”
Mediate UK are finding more clients coming to us, having been to court and the judge has either:
- Refused to make a judgement as the case is suitable for mediation
- Instructed the clients to use an alternative form of dispute resolution as the likely costs of the legal process exceed the amount in dispute
- Told the clients to try mediation and defer the case on for several months
The message from the judiciary is clear:
Family Mediation or other forms of alternative dispute resolution (ADR) are the place to settle disputes and not at the family court, unless absolutely necessary.
Mediate UK are the top-rated family mediation service in the UK. 90% of our clients who go on to joint mediation are able to reach an agreement through our progressive mediation system.
Why not find your future and give us a call on 0330 999 0959 or email email@example.com to find out more.