What happens if I don’t want to go to mediation?
At Direct Mediation Services (DMS) we are commonly asked by clients, who have been invited to attend mediation, two questions. The first is what happens if they decline an invitation to attend, and the second is, does it look bad in prospective court proceedings if they don’t go? Whilst mediation is a voluntary process, which means that it is the choice of both parties whether or not to use it, there is an expectation by the courts that in child arrangements or financial order cases you will have attempted mediation before applying to court. It is now a legal requirement that the applicant party (the person making the court application) attends a Mediation Information & Assessment Meeting (MIAM) before submitting a court application, unless specific exemptions apply.
The law appreciates that mediation is a voluntary process and that there are times that mediation won’t work; however, those reasons need to be substantive, such as acute domestic abuse. Just not wanting to do it is not a reason, and if the case goes to court, the case may be adjourned in order for you to attend mediation. This does happen more and more, especially with the current pressures on the family court. Today the family courts are overwhelmed and are struggling to cope with the high number of cases coming through its doors, and actually, many family disputes can be resolved without judicial intervention. Many people do not realise that courts will not issue an order unless it is absolutely necessary and it is in the best interests of the child. It is important to remember that by making a court application it does not guarantee that you will get an order. The two don’t always go hand in hand.
Do I really have to attend mediation?
In most cases, you should attempt mediation. For the applicant considering a court application, it is part of the legal requirement to consider, as mentioned. However, both parties should be able to satisfy the family court that you have considered mediation. This is done by attending a MIAM. At the MIAM you will have the opportunity to discuss your case with an accredited mediator, who will explain to you the process of mediation and help you decide whether or not it is a suitable way of resolving your dispute. It may be that the mediator who decides that you do not need to attempt mediation because it is not suitable. The mediator may give you this information during or after the MIAM and they are not obliged to give their reasons. During the MIAM you will be able to explain any concerns about attending mediation. In cases of high conflict, the mediator may suggest shuttle mediation, which would mean that neither party would see or have to speak directly with each other.
What are the exemptions to attending mediation?
One of the most common exemptions relate to being a victim of domestic abuse. This should, however, be considered carefully as you would be asked to evidence it. Suitable evidence would be a GPs letters or a crime reference number, for example. Another example is that there are no mediators close to where you live; however, this would no longer apply as it is now is quite uncommon for mediators to offer their service virtually. Just because you would like your appointment in person, would not be an excuse. The mediation process is the same online, as it is face to face.
These are just two exemptions, a full list can be found here:
- Domestic abuse: Victims of domestic abuse do not need to attend mediation, but you must be able to evidence this to the court.
- Any parties live abroad: Those resident outside of England and Wales are exempt from attending a MIAM due to the practicalities of attending. However, remember that you still can attend mediation virtually – we offer full virtual appointments that can suit your needs, so please get in touch!
- Your unaware of the other party’s location: If you are unable to locate the other party and have attempted to find out, then you will be unable to mediate and can be exempt.
- You have already attended a MIAM: If you attended a MIAM within the last 4 months and have a certificate to evidence this, then you do not need to attend again.
- You already have an ongoing court case: There is no need to attempt mediation if the dispute is already undergoing court proceedings.
- Your case is an urgent hearing: If your case involves risk of significant harm to any children involved, or there is risk they will be removed from the country, then you do not need to attend mediation as the case is a matter of urgency. It is advisable you seek legal advice if you are worried about this.
- You are under 18: If any party is under 18 then mediation is not suitable.
- You are applying for a consent order: If you already have an agreement that you are turning into a consent order, then you do not need to attend mediation.
- You or the other party about to be bankrupt: In financial cases mediation is not suitable where there is prospect of bankruptcy. In these situations, you should certainly get legal advice.
I have been invited to attend mediation by my ex-partner, do I need to be exempt to decline?
Those looking to apply to the court for child arrangements orders or financial orders must attend a MIAM, unless they satisfy the exemptions. On the other hand, those who have been invited to attend mediation have a choice: you do not need to be exempt and can decline an invitation to mediate. Whilst applicants to the court must consider mediation before applying to the court, respondents can decline to attend mediation from the outset. At DMS we will contact the respondent party (unless you have instructed us not to) after your MIAM. This is usually done by text, email and letter. The respondent has 5 working days to consider the invitation. The respondent may wish to decline to attend at this stage. However, if this is you should consider this carefully.
If you decline the invitation to mediation and the case goes to court, the judge or magistrates are quite likely to ask you why you did not attend mediation. If you do not have a good reason for declining, it could reflect badly on you at court.
The general expectation from the court is that the applicant and respondent in a family dispute will have at least considered mediation, which is done through attending the MIAM. Therefore, if you have been invited to mediation it is recommended that you at least attend the MIAM to discuss the case with a mediator. The MIAM may not cost you anything if the applicant party has Legal Aid, or you yourself qualify. There is no cost for a Legal Aid assessment, so there is nothing to lose.
The MIAM is completely confidential. The information that you share with your mediator will not be shared with either the other party or the court. You can have full confidence in your mediator to express your reservations, and the mediator will support you in coming to a decision about mediation. If you decide not to mediate, you can explain to the court that you attended a MIAM and did not wish to proceed with mediation for whatever your reason. Your attendance at a MIAM will be recorded on the mediation certificate, so the courts will know that you attended. Equally, they will also know if you haven’t, as this is also recorded. If you attend a MIAM and mediation does not ahead, the mediator will issue both parties with a mediation certificate.
So, in short, those invited to mediation do not need to satisfy an exemption to decline. However, you should weigh this up as the court will be interested as to why you declined to mediate.
I have declined mediation; will this be held against me?
As has been discussed throughout this post, the general rule is that mediation is always attempted unless an exemption applies. Yes, if mediation does not go ahead, or one party declined to attend, then it is very likely that a court would question this during proceedings.
In cases involving child arrangements, you should remember that all decisions made by the court will take the welfare of the children and their best interests as the paramount consideration. Where you have declined to mediate, or have acted unreasonably throughout the dispute resolution process then this may reflect badly on you at court.
If you do not have good reason for declining to attend meditation, then the judge may perceive you as frustrating the proceedings by being antagonistic or argumentative, and potentially acting in self-interest. The following examples are not sufficient reasons:
- Stating that you do not believe the other party will change their position – you cannot know this without attempting mediation.
- Refusing to attend mediation because you dislike or do not trust the other party.
- You disagree with the other party – naturally there are disagreements, that’s why you have been invited to mediation!
- Not wanting to be in the same room as the other party – you can use shuttle mediation.
- Childcare (the court will not accept this as it will be expected that you would organise childcare for a court case!). If childcare is an issue, think about online mediation, which you could attempt from your home.
- Simply not believing mediation will work – you don’t know unless you try.
If you have reasons why you do not want to mediate, but are unsure whether or not they are good reasons, it may be useful for you to still attend your MIAM so that you can discuss them with an accredited mediator in confidence. This also shows to the court that you have considered mediation and are not simply declining without consideration.
A judge or magistrates will likely look more favourably on parties who have tried everything they can to resolve disputes outside of the courtroom. It is perfectly understandable to end up in court where it is simply not possible to resolve the dispute without the help of a judge or magistrates, but you should take every step possible to avoid this. Court is to always be seen as the last option.
In financial cases, you should be aware that the judge is able to award legal costs to either party in the dispute. In making such a decision, the judge will consider the conduct of the parties both before and during the proceedings. So, for example, when one party has acted unreasonably and declined to mediate so as to frustrate the process, then this may well influence the judge’s decision in the other party’s favour. Again, this falls back to trying to keep the dispute of a courtroom so far as is possible.
Ultimately, the question as to whether declining to attend mediation will be held against you falls to your reasoning for it. If you are able to satisfy a court that there is a valid reason for not wishing to mediate, such as one of the exemptions, then no it would be unfair for a judge to hold this against you. However, if you declined to attend simply to be awkward, then this can reflect badly upon you. Only you can know whether you are acting reasonably or not, and remember that mediation is the preferable and encouraged method of resolving disputes by the courts.
Can the court tell us to go back to mediation?
Yes, but they cannot force you to mediate. Sometimes, where cases get to court, judges can adjourn proceedings and direct parties to attend mediation. In some cases, a judge may consider that an agreement regarding a dispute could be reached in mediation. Adjournments are usually a minimum of six weeks to allow mediation to be exhausted. However, even in these circumstances the parties can still decline to mediate. No one can be forced to mediate as it is a voluntary process! Again, however, where parties decline to mediate, the judge will certainly be interested in why the parties have come to this decision. Remember that the courts expect parties to try and settle disputes at mediation and it is true that many cases are better resolved in mediation rather than in the court.
Case studies
Case study 1:
Mark came to mediation to attempt to gain contact with his children. His ex-partner, Anna, was refusing to allow any contact since Mark left the family home. Mark had not been able to resolve the dispute independently, as Anna was not responding to any of his attempts to communicate.
Mark attended a MIAM with one of our accredited mediators to attempt to resolve the dispute through mediation. During the MIAM, however, Mark disclosed to the mediator that he had been subject to psychological abuse and controlling and coercive control. Due to this, the mediator deemed that the case was not suitable for mediation due to the abuse, as it created a power imbalance.
Mark was then provided with a mediation certificate that enabled him to make a C100 application to court for a child arrangements order.
Case study 2:
Roberto attended a MIAM with one of our accredited mediators as he was going through a divorce with his ex-husband, Amir, and wished to resolve ongoing disputes relating to the jointly owned home and finances. At Roberto’s MIAM, the mediator agreed that mediation was a suitable way of resolving the dispute and wrote to Amir to invite him to attend mediation.
Amir contacted our admin office to respond to the invitation. Amir said that he did not wish to attend mediation as he could not afford it. Amir did not qualify for Legal Aid as he did not have a low income or received a passporting benefit. Amir said that he would be willing to attend mediation if Roberto would cover his mediation costs. Roberto agreed to cover the whole costs of mediation, but Amir still declined to attend mediation despite this.
Roberto was therefore provided with a mediation certificate and was able to make a court application. The certificate evidenced to the court that Roberto had attended a MIAM alone and that Amir had declined to attend. In this case, there was no clear reason for Amir declining to attend and it is very likely this would have been questioned at court.
Conclusion
As stated throughout this blog post, family mediation is encouraged by the judicial system. If an exemption does not apply, then you should consider about coming to a MIAM before making any application to court. Mediation can be very successful in settling disputes, so it is always worth attempting.
If you do decide that mediation is not for you, always remember that the court will be interested as to why you have declined mediation, so take care in making this decision. If you would like further information or questions, please contact our friendly mediation team.
If you decide that you will make an application to Court and would like support, the Family Court Application Service (FCAS) could help you. Check out their guest blog here.
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