Mediation is always a voluntary process, although the courts can and will look at the conduct of both parties before and during the court proceedings. An important part of this conduct is showing you have acted reasonably and attempted alternate forms of dispute resolution, such as family mediation and followed court protocols.
Conduct, including declining mediation without a good reason, can be taken into account when looking at the awarding of costs and, for financial disputes, in the division of assets. Take a look below for more information about what happens if you don’t go to mediation.
Since April 2014 it has been a legal requirement to attend a MIAM to help you consider the benefits of family mediation before you can submit an application to the court for a child arrangements or financial order.
There reasons for this included, but were not limited to:
- The courts were becoming overwhelmed with cases
- Many of the cases could, and probably should, have been resolved without the need to go to court
- Court is not always the best place to resolve issues regarding a family matter
- The government, HMCTS and most legal professionals understand that family mediation, or similar forms of resolving disputes, is a better way to resolve issues on a divorce or separation, or a disagreement on child arrangements.
Do I have to attend mediation?
In order to submit an application to the court you must show that you have at least considered family mediation, by way of attending a Mediation Information Assessment meeting – called a MIAM. A MIAM is held with a family mediator who will explain how mediation works, assess whether it is suitable for your case and answer any questions or concerns you may have about mediation. You can read out ultimate guide to a MIAM here.
In some cases you may be exempt from attending a MIAM, for example if you have been a victim of domestic abuse and have the relevant proof, or if a child is at imminent risk.
You can see the full list of 15 exemptions here.
I have received court papers but I was not invited to attend mediation – why is that?
This may be because the other party either meets one of the MIAM exemptions or because they have attended a MIAM and either the accredited family mediator or other party have decided that family mediation is not suitable
If you have received forms from the court for financial or child arrangements, it is important you respond to them and attend court on the given day. Otherwise a decision could be made in your absence, which would be legally binding. You should take good independent legal advice where possible.
If you wish to go to family mediation, you can approach the other party and suggest this, or write to their solicitor suggesting family mediation. You can also inform the judge that you would prefer to resolve the issue through family mediation. The judge will then make a decision on how your case should proceed.
What if the judge considers the case is suitable for mediation?
If the judge thinks it would be better for you both to try to reach an agreement through mediation, then the judge can direct the case is adjourned a few months whilst you both try and resolve the matters through mediation. This direction can be at any stage of the proceedings – sometimes the judge may give an indication of what they would order and then ask you to mediate out the exact details between you.
If you are directed to try mediation by a judge, you still do not have to do it – one of the five pillars of family mediation is that it is always voluntary – but the judge would want to know why you have not done as they suggested and your conduct may be considered when it comes to awarding costs and in the final judgement
Can my solicitor decide mediation is not suitable?
No, only an accredited family mediator can decide if mediation is not suitable for your case. Once they have made such a decision, mediation should not take place, unless the circumstances have changed since that decision was made. In such cases, you may wish to attend a new MIAM to see if mediation is now suitable.
Your solicitor can say whether they believe one of the 15 exemptions to mediation should apply to your situation.
I have been invited to mediation – do I need to respond?
Yes, you should always respond to the mediator or the mediation service who contacts you. The mediator will always be neutral and it does not matter who has been seen by them first. The mediator will usually want to see each of you on your own before any joint mediation sessions can take place.
If you don’t respond or decline mediation without a good reason, you will usually have to explain why you declined mediation to the judge, if your case subsequently goes to court.
Will it be held against me if I do not attend mediation?
Quite possibly. Whilst mediation is always voluntary, under family law, your case will usually be involving child arrangements, a financial order or both. Take a look below on how it can affect your case:
Mediation for Child Arrangements Orders
The judge will usually be asked to make a decision on with whom the child(ren) will stayand when. They may be making a decision on a specific issue, such as whether the children can go on a holiday overseas, or which school they will attend.
In deciding such cases, the judge will take into consideration many things. The primary focus will be on what is in the best interests of the child(ren), their safety and their physical and emotional wellbeing. Whilst CAFFCASS may interview the children if they are deemed old enough and also make a report on the parents and their background, the judge will be the person making the final decision.
It is important therefore to show the judge that you have acted reasonably at all times and that you have put the needs of the children first. Considering a resolution of your parenting issues amicably between you, or through mediation, shows the court you have tried to be a responsible person and to sort things out. The judge may not look too kindly on a parent who has sought to frustrate the process, not responded to invitations to mediate or sort matters out amicably. Even if you think that would be in your children’s best interests, the judge may not agree with you.
If the matter of costs is being looked at in child arrangements order, this will usually only be awarded if the conduct of the other party was such that it would be fair and reasonable to do so. It is rare that costs are awarded in child arrangements cases, as the courts do not want to scare people away from applying to court to resolve a parenting dispute. However the judge does have the power to award costs and in deciding whether to award such costs (i.e. the legal fees incurred by the other party) the court will look at:
- Whether a party has succeeded in part of their case
- The conduct of parties before, during and after proceedings
- Whether it was reasonable for a party to make or contest a particular allegation or issue
- The way in which a party made or defended their case, or a particular allegation or issue
It is the conduct of parties before, during and after proceedings that willingness to compromise, mediate and resolve issues between you as parents that could be held against you if you decide not to mediate and the court believe you did not have good reason not to do so.
Mediation for Financial Matters
In financial matters the court has discretion to award costs to the other party. This would be where the legal fees incurred in the proceedings are paid in part or in full by the other party. In some cases there may be an interim cost award and in other cases the judge may make a decision on costs at the final hearing. Whilst there does not have to be an award of costs in a financial matter, the key factor in deciding whether costs will be awarded is the conduct of the parties involved.
A judge will look at how the parties have acted before and during proceedings and check whether court protocols have been followed correctly. A key aspect of this for all civil and family cases is whether mediation or other forms of alternative dispute resolution (ADR) were attempted. They will also look at whether the costs involved were reasonable to the amount in dispute. Our guide to the financial mediation process takes you through the pre-court process.
Take a look at some examples of where conduct around mediation made an impact on the awarding of costs of decision made by the judge:
Case Study 1
In this case, the husband was penalised financially in the final order for not making a full financial disclosure, but the wife was also penalised financially for taking an extreme negotiating position. The judge said:
“It is important that I enunciate this principle loud and clear: if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing”
Being reasonable, making an open financial disclosure and attempting methods of alternative dispute resolution – such as family mediation – are all behaviours that the court will expect you to demonstrate. And you may be penalised financially, either in the financial order, or with paying the other party’s legal costs, if you do not.
Case Study 2
The husband in this case was a director of a bank and was ordered to pay ongoing spousal maintenance to his wife which included a figure of 25% of his annual bonus. The husband appealed and said there should be an upper cap set on the % bonus.
In the course of his judgment the judge gave a strong ‘steer’ that in his view the right solution was for there to be a cap on the share received by W on the H’s bonus. To this end he directed that the parties engage in mediation to see if the matter could be resolved consensually and H agreed to bear the costs of the mediation in the first instance. In the event that the mediation was unsuccessful, the judge directed that he would deal with an application by W for a legal costs order, in relation to the appeal.
The mediation did not take place as agreement could not be reached as to the identity of an appropriate mediator and W accordingly made an application for a legal costs order.
The judge refused her application, saying in his ruling that the W had been unreasonable in her approach to the mediation:
firstly in her insistence on using a top-drawer and top-price mediator
secondly that her insistence on attendance of legal representatives at mediation was neither necessary nor reasonable; in my experience this would be unusual and arguably unhelpful.
The judge pointed out that there was still time for the mediation. Unfortunately it did not take place and out of this relatively modest matrimonial pot, the wife was ordered to pay £48,000 in legal costs for both parties for the appeal.
The lesson from this is very clear – if you are directed to attempt mediation by the court, you should do so and not attempt to scupper the mediation process by insisting on legal representation at the mediation – or as in this case, insisting on only using an extremely expensive mediator when the husband had agreed to pay the full mediation fees.
Similar principles are applied before your case gets to court – you can be penalised if you frustrate, ignore, thwart or generally hinder the mediation process without good reason.
What actions could be considered as frustrating the process?
- Not replying to an invitation to mediation
- Receiving an invitation and denying it had been received
- Booking in appointments and then continually cancelling them
- Insisting on an appointment at the weekend or at a date months in the future
- Insisting that your solicitor or another person is present at the mediation (you can have someone in support for your MIAM)
- Declining mediation as you refuse to move from your position
- Declining mediation as you believe the other party won’t move from their position
- Believing you are 100% right and your case is watertight
- Not mediating as you do not trust the other party
- Not mediating as you really dislike the other party
- You don’t want to be in the same room as the other person (you can do shuttle mediation)
- Declining mediation as you cannot get childcare organised (you would have to get childcare arranged to attend court)
- Stipulating conditions on the mediation taking place. ie only mediating if the other party will agree to something beforehand.
The message from the family courts is that mediation should be attempted and entered into in good faith, unless an accredited family mediator believes it is not suitable or one of the 15 exemptions applies.
There has been domestic abuse in our relationship, does this mean I do not have to mediate?
Possibly as one of the exemptions to attending a MIAM is if there has been domestic abuse against you in your relationship. Such abuse might be physical, verbal or psychological. You have to provide evidence of this exemption, which may be a police reference number, domestic abuse charity letter or note from a doctor or other health professional. The full details of proof required are explained on the relevant court forms – Form A for a financial order and C100 for child arrangements. You may also complete a Form C1A which will detail any incidents of domestic abuse and is sent to court alongside the relevant application.
If you do not have proof, you will need to discuss your situation with a family mediator at a MIAM. It may be that they decide mediation is not suitable and sign the court form accordingly.
Some people choose to mediate in separate rooms by shuttle mediation – which can also be held online, where you do not appear on the same screen.
My ex won’t move on their position so what is the point of mediation?
90% of Mediate UK’s clients reach an agreement when they go on to joint mediation. The national average is 74% – so many more people reach an agreement through mediation than don’t. Your ex’s position may be entrenched prior to mediation, but the mediation process helps you to explore solutions and reach agreement, even from positions that were previously far apart or seemingly immovable.
I don’t want to mediate as I don’t trust the other party to make a full financial disclosure.
You can ask for financial disclosure to be completed on a Form E, which is signed off to show it is accurate. Deliberate dishonesty on this form can be considered fraud under the Fraud Act 2006 and would possibly put you in contempt of court. Any agreement reached without a full disclosure could be ‘set aside’ at a later date and you would have to start the whole process again. It is also likely that you would be penalised by the court for frustrating the process, were you dishonest in your disclosure.
You can share Forms E through the mediation process and / or your solicitor(s) can scrutinise them alongside the mediation process.
My ex and I just argue whenever we discuss things, so there is no point in mediation.
The mediator will help you both have your say and make your points, whilst helping you focus on the issues to be resolved. Mediation is not about looking back over the relationship, discussing issues in the past or apportioning blame. It is about helping you agree the parenting or financial arrangements of your divorce or separation as fairly, amicably and cost-effectively as possible.
I cannot afford mediation, will this look bad on me?
Have a look here at our blog on who pays for mediation. If you are on certain benefits or low income you may be eligible for legal aid. If not, then mediation in the UK costs an average of £140 per hour for each party. Mediate UK charge £115 per person per hour. You can find a full list of costs here.
If you cannot afford mediation and are not eligible for legal aid, then you will have to go to court to resolve the situation, unless you can resolve the situation between yourselves.
Whilst it is always a voluntary process, the court will want you to show you have tried to resolve the issue you are asking them to make a judgement on in a reasonable and responsible manner. To help this, the law says you must attend a MIAM to consider family mediation in most cases. The court have wide ranging powers and can guide you to try family mediation, or award costs if you are seen to be frustrating the legal process.
But if 90% of clients go on to reach an agreement and that agreement can be reached with less stress, less cost and far quicker than going to court – why would you not want to attempt family mediation?
Click here for details of how to book in a MIAM from £130 – you can hold a MIAM anywhere in the world as long as the court jurisdiction is in England & Wales. If you wish to go directly to court, you can order an Urgent MIAM here for £199 which includes the signed court form.
Mediate UK are the No. 1 rated Family Mediation Service in England & Wales.
Call us on 0330 999 0959 or contact us to find out why and how we can help with your case.