Will it look bad if I skip mediation?
What happens if I refuse to attend mediation?
People who have been invited to attend mediation frequently pose two queries. The first is what happens if they decline an offer to attend, and the second is whether their absence would negatively impact future court hearings.
Despite the fact that family mediation is a voluntary process, meaning that it is the discretion of both parties whether or not to use it, the courts expect you to have sought mediation before filing a petition for child custody or a financial order. The applicant party (the one bringing the court application) must now attend a Mediation Information & Assessment Meeting (MIAM) prior to submitting a court application, excluding certain exclusions.
The law recognises that mediation is a voluntary procedure and that there are instances when it is ineffective; nonetheless, the grounds for its failure must be substantial, such as severe domestic violence. Not wanting to do it is not a valid excuse, and if the case gets to court, it may be postponed so that you can attend family mediation.
Considering the current strains on the family court, this is a trend that is increasing. In actuality, many family disagreements can be settled without judicial intervention, despite the fact that today’s family courts are overburdened and having to deal with a high volume of incoming cases. Many individuals are unaware that courts will only make an injunction if it is really necessary and in the child’s best interests. It is essential to keep in mind that filing a court application does not guarantee you will receive an order. The two do not usually go together.
Should I really attend mediation?
In most situations, family mediation should be attempted. It is a legal duty for the applicant considering a court application to examine the factors indicated. Nonetheless, both parties must convince the family court that they have considered mediation. This is accomplished by participating in an MIAM. At the MIAM, you will have the opportunity to discuss your case with a certified mediator, who will explain the family mediation process and assist you in determining whether mediation is an appropriate means of resolving your disagreement.
The mediator may determine that you do not need to pursue mediation because it is not appropriate. The mediator may provide this information during or after the MIAM; however, they are not required to provide an explanation. During the MIAM, you will be able to discuss any issues with mediation attendance. In high-conflict situations, the mediator may recommend shuttle mediation, in which neither party would see or talk directly with the other.
What are the exceptions to mediation attendance?
One of the most popular exemptions relates to domestic violence victims. However, this should be carefully studied because you will be required to provide evidence. Examples of acceptable evidence include a doctor’s note or a crime reference number.
Another example would be that there are no mediators in your area; however, this is no longer the case, as virtual mediation services are becoming increasingly widespread. The fact that you prefer to attend your appointment in person is not an acceptable reason. The family mediation process is identical online and in person.
These are only two exceptions; the complete list is available here:
- Domestic violence: Domestic violence victims are not required to attend mediation, but you must be able to prove this to the court.
- Any parties residing overseas: Those who reside outside of England and Wales are excluded from attending an MIAM due to logistical difficulties. However, keep in mind that you can still attend mediation online – we offer entire virtual consultations that can be tailored to your needs, so please contact us!
- You are uninformed of the location of the other party: If you are unable to locate the opposing party after making reasonable efforts to do so, you will be unable to mediate and may be exempt.
- You have attended a previous MIAM: If you attended an MIAM within the previous four months and have a certificate to prove it, you are exempt from attending again.
- You are already involved in a pending court case: There is no reason to undertake mediation if legal proceedings are already underway.
- Your hearing is an emergency: If your case contains a serious danger of harm to any children involved or a possibility that they will be removed from the country, you are not required to participate in mediation since the case is urgent. If you’re concerned about this, you should get legal counsel.
- You are under 18: If either party is under the age of 18, mediation is not appropriate.
- You are requesting a consent order: If you already have an agreement that you are converting into a consent order, you are exempt from attending mediation.
- You or the other party are in danger of going bankrupt: In financial disputes, mediation is unsuitable if either side is at risk of insolvency. In such circumstances, you must seek legal counsel.
My ex-partner has invited me to family mediation; must I be excused in order to decline?
Applicants for child arrangements orders or financial orders must attend an MIAM unless they qualify for one of the exemptions. Those who have been invited to participate in mediation, however, have a choice: you are not required to be exempt and can decline an invitation to participate in family mediation.
Applicants to the court are required to seek mediation prior to filing a petition, but respondents may deny mediation from the outset. After your MIAM, DMS will contact the responsive party (unless you ask us otherwise). Typically, this is done via text, email, and letter. The respondent has five calendar days to evaluate the invitation. At this time, the respondent may choose to decline attendance. However, if this is the case, you should carefully evaluate this.
If you decline the offer to mediation and the case proceeds to trial, the judge or magistrates are likely to inquire as to why you did not attend mediation. If you decline without a valid explanation, it could reflect poorly on you in court.
The court generally expects the applicant and respondent in a family dispute to have at least contemplated mediation, which is demonstrated by attendance at the MIAM. If you have been invited to family mediation, you should attend the MIAM to discuss the matter with a mediator. The MIAM may be free of charge if either the applicant party or you qualify for Legal Aid. Evaluations for Legal Aid are free, so there is nothing to lose.
The MIAM is a very confidential document. The information you share with your mediator will neither be shared with the opposing party nor with the court. You can explain your concerns to your mediator with full confidence, and he or she will help you to a choice regarding mediation.
If you choose not to mediate, you can inform the court that you attended an MIAM and did not choose to continue with mediation for any reason. Your attendance at an MIAM will be noted on the mediation certificate, so the court will be aware of your presence. Likewise, they will know if you have not, as this information is also recorded. If you attend an MIAM and mediation does not proceed, the mediator will issue a mediation certificate to both parties.
Therefore, people asked to mediation do not need to meet an exemption requirement in order to decline. However, you should consider this, as the court will want to know why you declined mediation.
Will my refusal of mediation be held against me?
As stated throughout this piece, the general rule is to always pursue mediation unless an exception exists. Yes, it is extremely conceivable that a court would raise this issue throughout proceedings if mediation does not occur or if one party refuses to participate.
In instances concerning child custody, you should keep in mind that the court will make all judgments with the children’s care and best interests as its top priority. If you refused to mediate or acted unreasonably during the dispute resolution process, this may reflect poorly on you in court.
If you do not have a valid cause for declining to participate in meditation, the judge may view you as interfering with the proceedings by being confrontational or argumentative and possibly acting in your own self-interest. The following examples are not adequate justifications:
- Stating that you do not believe the other party will modify their viewpoint; you cannot know this unless you attempt mediation.
- Refusing to attend mediation because you detest the other party or do not trust them.
- You disagree with the opposing party — conflicts are inevitable, which is why you have been invited to mediation!
- If you do not wish to be in the same room as the other party, shuttle mediation is an option.
- Childcare (the court will not accept this, as it is assumed that you would arrange for childcare for your court case!). Consider online mediation, which you might undertake from home if childcare is a concern.
- A simple lack of faith in the efficacy of mediation — you won’t know unless you try.
it may be beneficial for you to attend your MIAM so that you can discuss them in private with an accredited mediator. This also demonstrates to the court that you’ve considered mediation and are not simply rejecting it.
A judge or magistrate will likely see parties more favourably if they have made every effort to address problems outside of court. It is understandable to wind up in court if the issue cannot be resolved without the assistance of a judge or magistrates, but you should do all necessary to avoid this. Court should always be viewed as a last resort.
In financial disputes, you should be aware that the judge has the discretion to award legal fees to any party. In making such a determination, the judge will consider the parties’ actions prior to and during the proceedings. So, for instance, if one side has acted unjustly and refused to mediate in order to obstruct the process, this may affect the judge’s judgement in favour of the opposing party. This goes back to attempting to keep the dispute out of court as much as possible.
Whether or not your refusal to attend mediation will be held against you ultimately depends on your justification. If you can convince a court that you have a genuine cause for declining mediation, such as one of the exemptions, then it would not be unreasonable for a judge to hold this against you. However, if you declined the invitation out of awkwardness, this can reflect poorly on you. Only you can determine whether or not you are acting properly, and remember that mediation is the courts’ preferred and favoured technique for resolving disagreements.
The judge may order us to return to mediation.
Yes, but mediation cannot be compelled. When cases reach court, judges can sometimes suspend hearings and order the parties to attend mediation. In some instances, a court may believe that a conflict might be resolved through mediation. Typically, adjournments are a minimum of six weeks to allow for the conclusion of mediation.
However, even under these conditions, parties may still decline mediation. Since it is a voluntary process, no one can be forced to mediate! Again, though, if the parties choose not to mediate, the judge will undoubtedly be curious as to why they have made this decision. Keep in mind that the courts expect parties to attempt to resolve their disagreements through mediation, and it is true that many conflicts are better settled through mediation than in court.