Do I have to attend family mediation?
Mediation is a voluntary process and as such no one can be forced to attend. However, other than in exceptional circumstances, the Family Court will expect the parties to have attempted mediation or an alternative non-Court Dispute Resolution (“nCDR”) method before issuing proceedings.
Any individual wishing to issue Court proceedings must first attend a Mediation Information and Assessment Meeting (“MIAM”) with a mediator. A MIAM will typically last between 45 minutes to an hour and is an opportunity to tell the mediator about any relevant circumstances, any concerns and the issues that need to be discussed and determined. This is also an opportunity to tell the mediator about any attempts that have been made to resolve any dispute so far. The mediator will give information about mediation and all of the options available within the mediation sphere, as well as other nCDR processes such as arbitration, neutral evaluation and collaborative law.
Unless there is a reason not to do so, a mediator will ordinarily arrange a MIAM with each of the former partners or spouses. That person can decide whether to attend their own MIAM or refuse to do so. The meetings are separate and confidential but are often arranged within a short time period of the other.
Assessing suitability
Throughout a MIAM, the mediator will be evaluating whether a case is suitable for mediation. If mediation is determined to be suitable, it is then for the individuals to decide whether they wish to proceed with mediation or explore the other processes listed above.
If one or both individuals refuse to attend a MIAM, or following attendance at a MIAM, choose to ask the Court to resolve the dispute, then they can make an application to the Court. The application must be accompanied by a signed certificate from the mediator informing the Court of that decision. The certificate will inform the Court whether or not both parties have attended a MIAM and whether the application is an individual or joint decision. If mediation or an alternative process is attempted but is not successful and it becomes necessary to apply to the Court, then the mediator will sign a certificate to notify the Court of this circumstance.
If Court proceedings are issued in circumstances whether one party has refused to attend a MIAM, or where one or both have indicated to the mediator that they do not wish to use mediation or other form of NCDR to resolve the dispute, then it is possible that a Judge of the Family Court may assess the case at a hearing and make an order referring the parties back to mediation or other nCDR process. If the person who has made the application has done so without, in the other party’s opinion, reasonable attempts at nCDR methods, then the other person can write to the Court within seven days of receiving a Notice of Proceedings to ask the Court to put the proceedings on hold until NCDR methods have been attempted. A Judge will then assess on paper whether that is reasonable and make an Order as they deem appropriate.
What if mediation is refused?
Ultimately, a person who refuses to mediate, or who fails to engage with the process in a meaningful manner can be subjected to financial penalties if the Court deems it appropriate in all the circumstances. This issue was most recently reported upon in October 2024 in the case of AM v RF [2024] EWFC 288 (B). In that case, following her unsuccessful appeal against a child arrangements order, the mother failed to proactively engage in mediation, withdrawing from a meeting with one mediator at short notice, then delaying meeting with a second mediator and ultimately refusing to agree to a series of meetings to establish a timetable. In all the circumstances, the Judge ordered her to pay 50% of the father’s costs of the appeal amounting to around £10,000.
Whilst mediation and other forms of nCDR remain voluntary processes, it is increasingly clear that there is an expectation that, unless there are exceptional circumstances, there should be genuine and meaningful engagement with nCDR processes and that there can be significant implications for anyone who fails to do so.
Contact our family lawyers and mediators to find out more about arranging family mediation.
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