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Will it look bad if I refuse to go to Mediation?

Although mediation is always a voluntary procedure, the courts can and will scrutinise both parties’ conduct before to and throughout the court proceedings. A critical component of this behaviour is demonstrating that you acted appropriately and sought alternative conflict resolution methods, such as family mediation, while adhering to court processes.

Conduct, including a refusal to mediate without a compelling cause, might be considered in determining expenses and, in financial disputes, in dividing assets. Consider the material below to learn more about what happens if you do not attend mediation.

Background

Since April 2014, it has been a legal necessity to attend an MIAM to assist you assess the benefits of family mediation before to submitting a court application for child arrangements or a financial order.

Among the causes for this were, but were not limited to the following:

  • The courts were becoming more overburdened with cases.
  • Many of the instances might have been settled without the need to go to court, and probably should have been.
  • The courtroom is not always the ideal venue for resolving family law disputes.
  • The government, HMCTS, and the majority of legal practitioners recognise that family mediation, or comparable forms of conflict resolution, is a preferable method of addressing difficulties relating to divorce or separation, as well as disagreements over child custody arrangements.

Is it mandatory for me to attend mediation?

To file an application with the court, you must demonstrate that you have explored family mediation by attending a Mediation Information Assessment Meeting – referred to as an MIAM. A MIAM is held with a family mediator who will explain how mediation works, determine if it is suited for your case and address any questions or concerns you may have about mediation. You may read our comprehensive guide to become an MIAM here.

You may be excluded from attending an MIAM in certain circumstances, such as if you have been a victim of domestic violence and have the necessary documentation, or if a child is in urgent danger.

The whole list of 15 exemptions is available here.

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I have received court documents but have not been asked to mediation — why is this?

This might be because the other party falls inside one of the MIAM exclusions or because they attended an MIAM and either the accredited family mediator or the other party determined that family mediation was not appropriate.

If you have received court forms about financial or child custody agreements, it is critical that you reply to them and appear in court on the scheduled day. Otherwise, a legally binding decision might be taken in your absence. Wherever feasible, you should seek independent legal counsel.

If you choose to proceed with family mediation, you may approach the other party or write to their solicitor. Additionally, you might advise the judge that you wish to address the matter through family mediation. The judge will then decide how to continue with your case.

What if the court determines that the case is appropriate for mediation?

If the court believes it would be more beneficial for you both to attempt resolution through mediation, the judge may order the case to be delayed for a few months while you both attempt resolution through mediation. This direction can occur at any point throughout the proceedings — occasionally, the judge will indicate what they want to order and then ask you to arbitrate the specifics between you.

If a judge directs you to attempt mediation, you are not required to do so – one of the five pillars of family mediation is that it is always voluntary – but the judge will want to know why you did not follow through on their suggestion, and your conduct may be taken into account when determining costs and in the final judgement.

Can my solicitor determine that mediation is not appropriate?

No, only an accredited family mediator can determine whether or not mediation is appropriate in your situation. Once they have reached this conclusion, mediation should be avoided unless circumstances have altered since the conclusion was reached. In these instances, you may choose to attend a new MIAM to determine whether mediation is now appropriate.

Your solicitor can advise you if one of the fifteen mediation exemptions should apply to your circumstance.

I've been requested to participate in mediation — am I required to respond?

Yes, you should always communicate with the mediator or mediation agency that approaches you. The mediator will always remain impartial, regardless of who they have seen first. Generally, the mediator will want to meet with each of you individually before any combined mediation sessions can take place.

If you do not answer or deny mediation without a compelling cause, you will often be required to justify your decision to the judge if your case proceeds to court.

Is it possible that my failure to attend mediation may be used against me?

Possibly. While mediation is always optional, your case will almost always involve child custody, a financial order, or both. Consider the following implications for your case:

Child Arrangements Orders Mediation

Typically, the court will be asked to make a determination on who will care for the child(ren) and when. They may be deciding on a particular topic, such as whether the children may travel abroad for a vacation or which school they will attend.

When considering such instances, the judge will examine a variety of factors. The major consideration will be what is in the child(renbest )’s interests, their safety, and their physical and emotional well-being. While CAFFCASS may interview children believed to be of sufficient age and also provide a report on the parents and their background, the court will make the final determination.

It is critical, therefore, to demonstrate to the judge that you acted appropriately at all times and prioritised the children’s interests. Consider resolving your parenting concerns peacefully between you or through mediation. This demonstrates to the court that you have attempted to be a responsible person and to resolve matters. The judge may not look favourably on a parent who has blocked the process by failing to react to requests to negotiate or settle disputes peacefully. Even if you believe that is in the best interests of your kids, the judge may disagree.

 

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If expenses are considered in a child arrangements order, they are often only given if the opposing party’s behaviour was such that it would be fair and reasonable to do so. Costs are rarely given in child custody proceedings, since the courts do not want to scare families away from pursuing a parenting disagreement in court. However, the judge does have the authority to award costs, and in determining whether to do so (i.e., the opposing party’s legal bills), the court will consider the following:

  • Whether a side has prevailed in at least a portion of their argument
  • The parties’ actions prior to, during, and following the proceedings
  • Whether a party’s assertion or denial of a specific claim or issue was reasonable
  • The manner in which a party stated or defended their case, or the manner in which a specific claim or problem was raised or defended

It is the behaviour of parties prior to, during, and after proceedings that may be used against you if you choose not to mediate and the court believes you did not have a solid cause not to.

Contact us to learn how Albion-mediation may assist you with resolving a parenting or financial issue, as well as a divorce, separation, or legal counsel. To contact us, call 0141 295 0021 or click here.

Financial Mediation

The court has discretion in financial concerns to award costs to the opposing party. This is where the other party pays the legal expenses incurred during the proceedings in part or in full. In certain instances, an interim cost award may be made, while in others, the judge may decide on costs at the conclusion of the hearing. While an award of costs is not required in a financial dispute, the primary consideration in determining whether costs will be granted is the behaviour of the parties.

A judge will consider how the parties conducted themselves prior to and throughout the proceedings, as well as whether court protocols were followed appropriately. A critical part of this for both civil and family issues is the effort at mediation or other kinds of alternative dispute resolution (ADR). Additionally, they will consider whether the fees incurred were proportionate to the amount in dispute. Our financial mediation process guide walks you through the pre-court phase.

 

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Consider the following instances where behaviour during mediation had an effect on the judge’s decision to award costs:

1st Case Study

OG v AG [2020] EWFC 52

In this instance, the husband was financially penalised in the final decision for failing to disclose all relevant financial information, but the wife was also financially penalised for assuming an excessive negotiating position. According to the judge:

“It is critical that I state this point unequivocally: if you do not bargain honestly and reasonably once the financial environment is apparent, you will almost certainly incur a cost penalty. This is true regardless of the size of the case or whether it is resolved on the basis of needs or sharing.”

Being fair, disclosing financial information openly, and pursuing alternative conflict resolution techniques – such as family mediation – are all behaviours that the court will expect you to exhibit. And if you do not, you may be penalised financially, either through the financial order or by having to pay the opposing party’s legal fees.

2nd Case Study

H v W [2013] EWHC 4105 (Fam)

In one case, the husband was a director of a bank and was ordered to give his wife continuous spousal maintenance, which included a number equal to 25% of his yearly bonus. The spouse appealed, arguing that the percent incentive should be capped at a certain percentage.

Throughout his conclusion, the judge made a strong’steer’ that the appropriate remedy, in his opinion, was for there to be a restriction on W’s part of H’s bonus. To this aim, he instructed that the parties enter into mediation to determine if the case might be handled consensually, with H agreeing to fund the first expenses of the mediation. If the mediation fails, the judge ruled that he will consider W’s application for a legal costs order in connection with the appeal.

The mediation did not take place due to an inability to agree on the name of an acceptable mediator, and W therefore sought a legal expenses order.

The judge denied her application, stating in his judgement that the W’s approach to the mediation was unreasonable:

To begin, with her insistence on engaging an elite and high-priced mediator.

and

Second, her demand on legal representation attending mediation was not required nor appropriate; in my experience, this would be rare and possibly counterproductive.

The court emphasised that time was still available for mediation. Unfortunately, that did not occur, and the wife was compelled to pay £48,000 in legal expenses for both sides for the appeal out of this very tiny marital pot.

The lesson here is crystal clear – if the court directs you to attempt mediation, you should do so without sabotaging the process by insisting on legal representation during the mediation – or, as in this case, by insisting on using an extremely expensive mediator only after the husband agreed to pay the full mediation fees.

Similar rules apply prior to your case reaching the courtroom – you can be penalised for obstructing, ignoring, thwarting, or generally impeding the mediation process without justification.

What activities can be construed as obstructive to the process?

  • Failure to respond to an invitation to mediate
  • Receipt of an invitation and denial of receipt
  • Making appointments and then cancelling them repeatedly
  • Insisting on a weekend appointment or a date months in the future
  • Insisting on the presence of your solicitor or another representative during the mediation (you can have someone in support for your MIAM)
  • Refusing to participate in mediation because you are unwilling to budge from your current stance
  • Refusing to participate in mediation because you feel the other side will not budge from their viewpoint
  • Believing that you are 100 percent correct and that your argument is impenetrable
  • Refusing to mediate because you lack faith in the other side
  • Refusing to mediate because you despise the other party
  • You do not wish to be in the same room as the other individual (you can do shuttle mediation)
  • Refusing mediation because you are unable to arrange childcare (you would have to get childcare arranged to attend court)
  • Specifying the terms under which the mediation will take place. i.e. mediating only if the other side agrees to anything in advance.

The family courts’ message is that mediation should be attempted and engaged into in good faith, unless a qualified family mediator determines that it is not appropriate or one of the fifteen exclusions applies.

Does the fact that there has been domestic abuse in our relationship indicate that I am not required to mediate?

Perhaps one of the exemptions to attending an MIAM is if you have been the victim of domestic abuse in your relationship. Physical, verbal, or psychological abuse are all forms of abuse. You must show proof of this exemption, which may include a police reference number, a letter from a domestic violence charity, or a letter from a physician or other health expert. The specific requirements for proof are detailed on the appropriate court documents – Form A for financial orders and Form C100 for child arrangements. Additionally, you may complete a Form C1A, which details any instances of domestic violence and is filed with the appropriate application.

 

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If you do not have documentation, you must speak with a family mediator at an MIAM. It is possible that they will determine that mediation is not appropriate and will sign the court form accordingly.

Some individuals choose to mediate in separate rooms using shuttle mediation – which can even be conducted online, without both parties appearing on the same screen.

My ex-spouse would not budge from their stance, so what is the use of mediation?

90% of customers of Albion-Mediation achieve an agreement before proceeding to joint mediation. Nationally, the average is 74% – far more people achieve an agreement through mediation than do not. While your ex’s viewpoint may seem entrenched before to mediation, the mediation process enables you to explore options and find agreement, even from previously intractable views.

I'm unwilling to mediate because I have doubts about the other party's ability to give a complete financial disclosure.

You can request that financial disclosure be completed on a Form E and that it be signed off as correct. Dishonesty on this form is considered fraud under the Fraud Act 2006 and may result in you being held in contempt of court. Any agreement struck without complete transparency may be’set aside’ at a later date, necessitating a re-start of the entire procedure. Additionally, you would very certainly be penalised by the court for obstructing the process if you were dishonest in your disclosure.

You can exchange Forms E throughout the mediation process and/or have them scrutinised concurrently with the mediation process by your solicitor(s).

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My ex and I constantly dispute everytime we discuss anything, so mediation is pointless.

The mediator will assist you in having your say and stating your case, while also assisting you in focusing on the issues that need to be handled. Mediation is not about reflecting on the relationship’s history, analysing past conflicts, or apportioning blame. It is about assisting you in resolving your divorce or separation’s parenting or financial arrangements in the most equitable, amicable, and cost-effective manner possible.

I am unable to pay mediation; will this reflect poorly on me?

Visit our blog to learn more about who pays for mediation. You may be eligible for legal aid if you get certain benefits or have a low income. If not, mediation costs an average of £140 per hour for each side in the United Kingdom. Albion-Mediation charges £115 per hour for each individual. A complete list of costs may be seen here.

If you cannot afford mediation and are not qualified for legal assistance, you will have to address the matter in court, unless you can fix it between yourselves.

Conclusion

While it is always a voluntary procedure, the court will want to see evidence that you made a reasonable and responsible attempt to settle the matter on which you are seeking a decision. To assist with this, the law requires that you attend an MIAM before considering family mediation in the majority of circumstances. The court has broad discretion and may direct you to attempt family mediation or impose fees if you are seen to be obstructing the legal process.

However, if 90% of clients achieve an agreement, and that agreement may be reached with less stress, expense, and time than going to court, why would you want to avoid family mediation?

For further information on how to arrange an MIAM for £115 – You can convene an MIAM in any country as long as the court has jurisdiction over England and Wales. If you choose to go immediately to court, a Court MIAM may be ordered here for £99, which includes the signed court form.