As we reported here recently, the government has shelved its plans to make mediation compulsory in most family cases. However, the courts are themselves taking steps to ensure that more family cases are resolved via ‘non-court dispute resolution’.
Before we look at how the courts are going to do this, we first need to consider exactly what is meant by ‘non-court dispute resolution’.
The steps that the courts are going to take are contained in new rules, which will come into force on the 29th of April. One of the rules provides a definition of ‘non-court dispute resolution’.
The rules state that ‘non-court dispute resolution’ means methods of resolving issues other than through the court process, including, but not limited to, mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law.
Briefly, the methods specifically mentioned are:
Mediation: A process of assisted negotiation, where an independent mediator helps couples resolve issues. For more information on mediation, see this page.
Arbitration: Whereby the parties agree to have a neutral third party (the arbitrator) make a binding decision on the dispute. For more information on arbitration, see this page.
Private FDR: Whereby the parties to a financial remedies dispute pay for a financial remedy specialist to act as a private judge, who will endeavour to help the parties to resolve the dispute by agreement.
Collaborative law: Whereby each party has a lawyer who is trained specifically in collaborative law, and the parties and their lawyers work together to find a solution to the dispute. For more information on collaborative law, see this page.
So what will change on the 29th of April?
The first thing to say is that the new rules will not mean that it will be compulsory for the parties in a family case to engage in non-court dispute resolution. The word that the rules use is “encourage” – i.e. the intention is to encourage the parties in all suitable cases to consider the use of methods of resolution outside of court.
Specifically, the new rules will do three things, in addition to providing a new definition.
The first thing the rules will do is enable the court to require the parties to set out in writing their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings. Obviously, this will not only inform the court but also encourage the parties to actively consider using methods of resolution outside of court.
The second thing the rules will do is make provision for the court to use the timetabling of proceedings to encourage non-court dispute resolution. A key difference to the old rules here is that whereas under the old rules the court could only adjourn the proceedings to enable non-court dispute resolution to take place where the parties agreed, under the new rules the court will not need the agreement of the parties.
The third thing the rules will do is possibly the most significant, in relation to financial remedy proceedings. At the conclusion of such proceedings the court may make an order for costs against one of the parties if that party failed without good reason to attend a Mediation Information and Assessment Meeting (‘MIAM’) or non-court dispute resolution.
Exactly what all of this may mean in practice was indicated by Mrs Justice Knowles in a recent judgment, in which she referred to the new rules and said: “Going forward, parties to financial remedy and private law children proceedings can expect – at each stage of the proceedings – the court to keep under active review whether non-court dispute resolution is suitable in order to resolve the proceedings. Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings.”
Clearly, the intention is that in significantly fewer cases will the parties require the courts to adjudicate the matter for them.
For further information on how we can help, please see our Family Mediation page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
Family mediation is now an integral part of the family justice system in England and Wales. It resolves issues for separated couples outside of court, aiding thousands yearly.
But it wasn’t always this way.
Family mediation in this country is a relatively new phenomenon. It has its origins in the 1970s, although it did not really begin to take off until the early 1980s.
Initially, mediation lacked a standard model, training for mediators, or regulation.
Different organizations independently developed mediation practices, resulting in variations based on location and chosen organization.
There was also no single voice to speak for family mediation, and put its case to government and the media.
All of that changed in 2007 when the Family Mediation Council (commonly abbreviated to ‘FMC’) was established.
The FMC is currently made up of five family mediation organisations:
1. The College of Mediators, which was set up in 1996 and also covers non-family mediation;
2. The Law Society, which is the professional body for solicitors and offers Family Mediation Accreditation;
3. The Family Mediators Association, which was established in 1988 and now has a membership of around 350 family mediators;
4. National Family Mediation, which was established in 1982 and is the largest provider of family mediation in England and Wales; and
5. Resolution, the association of family lawyers, which also offers Family Mediation Accreditation.
The FMC is a not for profit organisation that maintains a professional register of family mediators.
The Family Mediation Council is dedicated to promoting best practice in family mediation, with the central aim of ensuring that the public can confidently access family mediation services that offer high quality mediation provided by mediators who meet the FMC’s standards.
The FMC does not itself provide mediation. Instead, it ensures that all FMC Registered Mediators are: trained to a set standard; follow the FMC’s Code of Practice (see below); hold relevant insurance; are required to carry out training and activities to ensure their continued professional development; receive the appropriate supervision and support; and are required to have a complaints process.
The FMC also provides the profession of family mediation as a whole, the members, mediation services and family mediators with one unified body to make representations to government and other national interests, and promotes family mediation to the media and others.
Central to the FMC is its Code of Practice, which all of its members must follow.
The Code outlines the aims, objectives and scope of family mediation, and also details the general principles of family mediation, as well as the training and standards which can be expected of all FMC mediators.
The general principles of mediation set out in the Code include that mediators must act impartially, and with integrity and fairness towards both participants; that mediators must not disclose information obtained in mediation to anyone else, save in limited circumstances, such as where it appears that a child has suffered significant harm; that the mediator must be alert to the likelihood of power imbalances existing between the participants; and that participation in mediation must be purely voluntary.
You can find the full Code of Practice here.
Our founder Ian Walker, who trained as a mediator in 1996, is accredited by the FMC. Ian has also served as a Trustee of the Family Mediators Association, one of the member organisations of the FMC.
For more information about Family Mediation and the mediation services that Walker Family Law offers, see this page.
Last year the Government ran a consultation seeking views, particularly from family justice professionals and mediation service providers, on resolving private family disputes earlier through family mediation.
The consultation proposed supporting parents to resolve family matters without court involvement, including pre-court parenting programs and compulsory mediation attempts. Encouraging mediation before court application was another proposal, promoting amicable resolution for individuals involved in family matters. Those avoiding reasonable mediation efforts could face penalties, including covering part/all of the legal costs of the other party.
The Government has now published its response to the consultation.
The central proposal in the consultation was the introduction of the compulsory mediation requirement, in appropriate cases.
But the Government has decided against introducing such a requirement.
The Government proposed exemptions to mandatory mediation, particularly in cases involving domestic abuse, seeking feedback on the proposal.
However, many respondents to the consultation were concerned that the proposed exemptions would not be enough to adequately protect survivors of domestic abuse from being required to attend mediation when it is not suitable or safe for them. An example of this is where they do not fully realise that they have experienced domestic abuse.
In the light of these responses the Government has decided not to introduce the requirement “at this time”.
The Government is enhancing mediator roles in dispute resolution by improving domestic abuse screening and mediator training.
The Government aims to encourage mediators to provide child-inclusive mediation and increase the uptake of this service among families. One barrier to this which was mentioned in response to the consultation was that some mediators have been unable to apply for the enhanced Disclosure and Barring Service (DBS) check, to provide some assurance to families that they are safe and can be trusted to carry out child-inclusive mediation. The Government is therefore working with the Family Mediation Council to develop guidance for mediators to help them access this service and ensure they can apply for the enhanced DBS check. They aim to boost child-inclusive mediation by providing guidance, ensuring a safe and secure process for families and mediators.
The Government pledges ongoing support for the Mediation Voucher Scheme, offering £500 towards eligible cases’ mediation costs. By March 2025, the Government’s £23.6 million investment will aid 24,600 families, resolving issues without resorting to court.
Many respondents to the consultation considered that the lack of free, publicly funded, family law legal advice was a barrier to early dispute resolution, saying that providing funded access to early legal advice would improve the information available to parents, allowing them to make better informed decisions about their dispute, and potentially leading to improved outcomes for parents and their children.
Government plans pilot for tailored legal advice aiding parents facing challenges in child arrangements, aiming to support effective resolution. The pilot, which the Government plans to launch in specific regions in England and Wales by summer 2024, will seek to demonstrate the benefits of high-quality legal advice for families looking to resolve their issues through the courts and, where court is deemed necessary, better prepare them for the court process.
Government pilot to evaluate impact of funded early legal advice, aiming to expedite dispute resolution and court-based solutions.
Lastly, the Government has announced that it will expand its ‘pathfinder’ courts pilot. Pathfinder courts in Dorset and North Wales pilot an investigative, child-centred approach, reducing adversarial procedures and enhancing support for parties.
The Government says that the pilot will be extended to South-East Wales and Birmingham in April and June 2024 respectively and then, subject to the findings of an evaluation and decisions at the next Spending Review, it intends to roll out the new approach to all courts in England and Wales.
It goes without saying that family law-related issues should be resolved by agreement if possible, rather than through the courts. But often the parties need help to reach agreement. This is where family mediation comes in. Family mediation is a voluntary process of assisted negotiation, where an independent, professionally trained, mediator helps couples resolve issues. Family mediation typically involves a number of meetings between the couple and the mediator. So what happens at a mediation meeting?
Before we answer that we should briefly mention another type of meeting related to mediation: the Mediation Information and Assessment Meeting, or MIAM for short.
Before making an application to the court all applicants must first attend a MIAM, unless they are exempt.
The MIAM is a first meeting with a mediator, to explain how mediation works, and to assess whether the case is suitable for mediation. If the case is assessed as being suitable then the couple can decide whether they want it to be referred to mediation.
Essentially, the MIAM aims to inform those considering court action about mediation’s existence and assess its suitability for their case.
Mediation meetings can involve the couple and the mediator meeting face to face in the same room. They can also take place as an online meeting. It is even possible for the couple to be in separate rooms, if that is preferred.
Exactly what happens at a mediation meeting will vary from one case to another, and will depend upon the type of issue that needs resolution – an issue relating to arrangements for children or an issue relating to finances and property on separation or divorce.
Generally, the mediator assists the couple in identifying agreed matters and resolving issues that require further discussion and resolution.
The meetings are entirely confidential.
Note that even if the mediator is a lawyer they will not provide legal advice, save to indicate in general whether a proposed solution is likely to be approved by the court.
The mediator will however indicate to the parties when they might need independent advice upon a particular matter. (Note that the parties can take legal advice at any time during the mediation process.)
In the course of the meetings the mediator will seek to ensure that both parties have an equal say, and that any proposed solution is fair to both parties and any children involved.
If the meetings lead to an agreement, the mediator documents it and provides each party with a copy. Note that the agreement is not legally binding, but can be incorporated into a binding court order, if appropriate.
And if the mediation is not entirely successful, the mediator will provide the couple with a written summary of the outstanding matters, and what action the couple should take next.
There are no hard and fast rules as to how long the mediation process will take. The duration depends on the specific case, including the issues and their complexity.
In general, however, the process might typically involve three to five meetings, each lasting between one and two hours.
The meetings will usually be spread over a number of weeks, although more complex cases may take several months.
Note that mediation concerning finances and property may take longer, as the couple will need to make full disclosure of their finances before the mediation can proceed, so that both parties and the mediator know exactly what is involved.
For more information about family mediation, and how we can help, visit our family mediation page.
For further information on how we can help, please see our Expertise pages.
Relationship breakdown will obviously usually mean that the parties will no longer have anything to do with one another (save, perhaps, for any ongoing maintenance liability).
But where the parties have children, and especially where the children are dependent, they will still have to deal with each other, to sort out arrangements for the children.
And of course the parties may enter into new relationships, which can add an extra dimension to those arrangements.
If a parent enters into a relationship with a new partner then it is obviously likely that the children will come into contact with the new partner, especially if the parent and their new partner live together.
Seeing their parent with someone else may obviously be upsetting for some children (although many take it in their stride). Introducing children to the new partner should therefore be approached with care, perhaps on a gradual basis, rather than treating it as a ‘fait accompli’.
And consideration should also be given to the other parent, who may understandably have concerns about the children meeting and spending time with the new partner.
If possible the parent with the new partner should discuss those concerns with the other parent, and reassure them that the children will come to no harm.
Of course, it isn’t always possible for separated parents to discuss and agree matters in an amicable fashion. In such a situation there are two common scenarios that may occur: the other parent may want to stop their ex introducing the children to their new partner, and they may even demand to meet the new partner.
As mentioned above, the other parent may have genuine concerns about their children meeting and spending time with their ex’s new partner. Those concerns may be just general worry about the effect upon the children, or may be specific concerns, based upon information they have about the new partner, or what the children have told them.
If the parent is sufficiently worried they could apply to the court for an order restricting the children’s contact with the new partner, but this should really be seen as a last resort.
They should first try to discuss their concerns with the other parent, and could also consider resolving the matter via mediation.
If they do go to court they should understand that they will have to prove to the court that the children have suffered, or are likely to suffer, ongoing harm by having contact with the new partner. Merely being upset when they first meet the new partner is unlikely to be sufficient, as the court generally takes the view that if a new partner is a part of the parent’s life, then they should be a part of the children’s lives also.
Of course, simply not knowing the new partner can naturally cause the other parent to worry about their children’s welfare. They may therefore want to be reassured by meeting the new partner.
This can be a good idea, provided of course that all parties are happy to meet, but what if they are not? Can the other parent force a meeting?
The simple answer is that they can’t, and even the court will not force a meeting to take place.
However, again if the other parent’s concerns are sufficiently serious for the matter to go to court then the court will want to check that the new partner poses no threat of harm to the children. This could be done, for example, by the court appointing a welfare officer to investigate, and the welfare officer meeting the new partner.
For further information on how we can help you, please see the Child Arrangements page.
Please contact us if you require any further information
Back in April we reported that the government was consulting on proposals to introduce mandatory mediation for separating couples.
And now two very important organisations have published their responses to the consultation: the Law Society, the professional association that represents solicitors in England and Wales, and Resolution, the association of family lawyers.
Before we look at the responses, let us briefly remind ourselves of exactly what the government is proposing.
The government is proposing that separating couples should make a “reasonable attempt to mediate”, before they go to court.
If a party does not make a reasonable attempt to mediate, without a reasonable excuse (for example where there has been domestic abuse), then the court will penalise them, possibly by ordering them to contribute towards the other party’s costs.
The proposals were subject to a government consultation, seeking views on the proposals from “organisations representing separating families, family justice professionals, mediation service providers, other dispute resolution service providers and individuals who have live experience of the family courts or mediation.”
The consultation period ended on the 15th June. The government has not yet published the outcome of the consultation, but the Law Society and Resolution have published their responses.
In their response the Law Society say that: “Divorcing couples should not be subject to mandatory mediation, as putting barriers in place to attending court is likely to deny access to justice”.
The Society therefore called for mediation not to be mandatory in divorce cases, saying that no form of dispute resolution should be mandatory – attendance must be voluntary for it to be effective, and that complex cases in particular may not be suitable for mediation.
It also called for legal aid to be made available for early advice, which could mean that there was more chance of early settlement.
Resolution made similar points in its response.
It said that whilst mediation helps and will continue to help many families who choose to use it, it is not right for everyone, and should not be forced upon anyone.
Resolution also pointed out that there are other forms of out of court dispute resolution (such as Collaborative Family Law), which need to be considered and funded.
And Resolution made the same point as the Law Society about access to early legal advice, a representative saying: “What is … sadly lacking [from the government’s proposals] is that there is no funding for any initial legal advice. That is a message that we have been making … now for around eight years and we feel very strongly that without that initial funding for legal advice, unfortunately these proposals are going to fail.”
There will, of course, be many who will dismiss these responses as merely attempting to protect vested interests. After all, both the Law Society and Resolution represent lawyers and obviously lawyers will not want to lose business by having more cases settled out of court.
But the responses should not be dismissed so easily. For a start, many of the members of both organisations are mediators as well as lawyers, who may well gain as much business as they may lose as a result of mediation becoming compulsory.
And anyway most family lawyers have long been recommending mediation to clients in appropriate cases.
And further to that, all family lawyers will endeavour to resolve cases by agreement wherever possible, even when mediation is not attempted. The vast majority of family cases are resolved by agreement without going to court, largely through the efforts of family lawyers.
And family lawyers know what they are talking about. They spend their careers in the ‘front line’ of family cases. No one knows better than they do about the best way to find out of court family law solutions.
Even if the responses are taken seriously the big question, of course, is: will they make any difference to the government’s plans?
The government is clearly enthusiastic about the proposals, and no wonder if it believes that they will save money.
And the government’s enthusiasm for mediation is not limited to its use in the family justice system. It has just announced that mediation is to become part of the court process for small civil claims valued up to £10,000.
Both the Law Society and Resolution make good points. But whether their points will be enough to deflect the government from its chosen path is another matter.
For a more in-depth understanding of how mediation works and what mediation actually is, please visit our How does family mediation work page. Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration. Please contact us for further information.
Obviously, it is always better if family issues are resolved by agreement, and one way of achieving this is via mediation, whereby a trained mediator will endeavour to help the parties to reach agreement.
Mediation is an important tool in reaching out of court solutions, but until now it has been entirely voluntary. True, before making an application to court all applicants must first attend a Mediation Information and Assessment Meeting (‘MIAM’), unless they are exempt, but that is merely a meeting with a mediator to explain how mediation works, and to assess whether the case is suitable for mediation. Whether the parties then go to mediation is up to them.
So, while the answer to the question “is mediation compulsory in family law?” is currently no, family mediation may soon be made compulsory.
On the 23rd of March the Ministry of Justice, Cafcass and the Lord Chancellor announced proposals to introduce mandatory mediation for separating couples.
The proposals will mean that separating couples will have to attempt to agree their arrangements for children and finances through a mediator, with court action being a last resort.
Parties who do not make a “reasonable attempt to mediate” could face financial penalties in any subsequent court proceedings (presumably it would be for the judge to decide whether a reasonable attempt has been made). The penalties would likely take the form of orders requiring the party who failed to make a reasonable effort to mediate to contribute towards the legal costs of the other party.
The government says that “It is expected the move could help up to 19,000 separating families resolve their issues away from the courtroom, while also reducing backlogs, easing pressures on the family courts and ensuring the justice system can focus on the families it most needs to protect.”
The proposals are subject to a government consultation, seeking views on the proposals from “organisations representing separating families, family justice professionals, mediation service providers, other dispute resolution service providers and individuals who have lived experience of the family courts or mediation.”
The consultation runs until the 15th of June, and can be found here.
Meanwhile, the government’s Family Mediation Voucher Scheme will be extended until April 2025, backed by an additional £15 million in funding. The scheme provides separating couples with vouchers worth up to £500 to help them solve disputes through mediation, and has so far supported over 15,300 families.
The government acknowledges that mediation is not appropriate in all family cases. It is therefore proposing that there be exemptions to the requirement for compulsory mediation.
The exact exemptions are yet to be decided, but the consultation mentions cases where there are concerns over domestic abuse, cases where there are child protection issues, and urgent cases.
But will there also be some cases that don’t fall within those exemptions but are still unsuitable for mediation?
Take, for example, a child arrangements case in which one parent alleges that the other has alienated the children against them. In such a case it could be argued that mediation would literally be a waste of time, further delaying resolution of the issues. Surely, it would be far better for the court to deal with the case as soon as possible?
On the other hand, it can be surprising what cases are resolved by agreement, as any experienced family lawyer will attest. Sometimes, the parties are so entrenched with their opposing views that it seems impossible, and yet it does happen. Shouldn’t mediation therefore be ‘given a chance’ in all non-exempt cases?
But what if neither party wants to go to mediation? Should they still be forced to do so? And if they then both fail to make a reasonable attempt to mediate, how are they to be penalised?
And then there is the argument, raised by Resolution among others, that mediation works best when it is done voluntarily, and that forcing parents to choose a route that may not be suitable for them is not an appropriate course of action.
Clearly, the introduction of compulsory mediation is a controversial idea, and there is likely to be considerable argument both for and against it. If you feel that you have a useful contribution to make towards the discussion you can respond to the consultation here.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.
Most parents will have ‘parental responsibility’ for their children. Parental responsibility means the legal responsibility to do whatever is necessary to look after the child.
Parental responsibility is normally shared by both parents, irrespective of whether they have separated. Having parental responsibility can therefore be of great importance to a separated parent who wishes to continue to play a full role in their child’s upbringing.
However, parental responsibility is not necessarily permanent. The court can, in certain circumstances, terminate a parent’s parental responsibility, as two recent cases have shown.
Before looking at the particular facts of those two cases, we need to consider what the law says regarding the termination of parental responsibility.
The first point to make is that there is only one mechanism by which parental responsibility may be removed: an order of the court.
When considering whether to make such an order the welfare of the child is the ‘paramount consideration’. In other words, the court has to decide that it is better for the child to remove parental responsibility from one of its parents than to leave that parent with parental responsibility (obviously, it is usually considered best for the child if both parents have parental responsibility).
The court may also ask the question: if this parent was applying for parental responsibility, would it be granted to them? When considering this question the court will take into account such matters as the level of attachment between the parent and the child, and the parent’s commitment to the child. If the answer to the question is ‘no’, then that is an important factor to take into account when deciding whether to terminate parental responsibility.
And if the court concludes that the parent is unlikely to exercise parental responsibility in a way that would be beneficial to the child, then clearly it would be best for the welfare of the child for parental responsibility to be terminated.
So to the two cases, in both of which the father’s parental responsibility was terminated by the court.
The first case concerned two sisters, aged seven and two. Their father had parental responsibility for them, having been named on their birth certificates, and their mother was applying to the court for his parental responsibility to be terminated.
The facts in the case were quite shocking. In March 2019 the father stabbed the mother fifteen times, as she was walking home from school with the older child, who was five at the time. The father was subsequently convicted of the attempted murder of the mother, for which he is serving a prison sentence, with a minimum term of thirteen and a half years.
But it did not stop there, in April 2020 the father made a call to Crimestoppers stating that the mother was going to be murdered on that day. As a result of this the mother and children had to be rehomed, and additional security measures were put in place.
In these circumstances it may come as no surprise that the court granted the mother’s application to terminate the father’s parental responsibility.
The second case concerned a child aged eight years. Her parents separated in 2014, and she remained with the mother. In 2015 the father came under investigation by the police for sexual offences against a child. In the light of this, and on the advice of the police, the mother stopped the father’s contact with the child. The father has had nothing to do with her since.
The father was subsequently convicted of sexual offences against children, and served a term of imprisonment.
Following this, the father was convicted of harassing a female victim, including making threats to have her killed. The Probation Service concluded that two categories of people were at risk from the father: children and intimate partners.
The mother’s solicitors wrote to the father inviting him to consent to the removal of parental responsibility. He did not reply, and the mother applied to the court for an order terminating his parental responsibility.
Hearing the application Mr Justice MacDonald was satisfied that if the father were applying for parental responsibility, such an order would not be granted.
There was no attachment with the child (who has no recollection of him), he showed no commitment to her (he had failed to engage in the proceedings), and he had taken no steps since his convictions to address his offending behaviour, or the risk he had been assessed to continue to present to children and former partners. In addition, Mr Justice Macdonald was satisfied that were the father to have parental responsibility there was a significant risk he would seek to use it to control the mother.
Accordingly, he found that it was in the child’s best interests to terminate the father’s parental responsibility.
You can find out more about parental responsibility, and what it means, on this page.
The best solution to resolving a divorce or family dispute is of course by agreeing matters with the other party, whether those matters relate to arrangements for any dependent children, finances, or property.
And one of the best ways to sort out matters by agreement is through mediation, whereby a trained family mediator will help the parties come to an agreement, which is both workable and fair to all.
But, despite the fact that mediation has been used to resolve family disputes for more than twenty years, many people going through family breakdown still have reservations about it, doubting that it will be suitable for them, or that it will work.
In fact, family mediation is appropriate for the vast majority of cases. As any experienced family lawyer will attest, many cases settle by agreement despite it appearing at the outset that that would be unlikely to ever happen. Similarly, with the help of an expert mediator, mediation can be successful in the most unlikely cases.
However, despite our enthusiasm for mediation as a method of resolving family disputes, we do acknowledge that sometimes it is not appropriate, and sometimes, despite best efforts, family mediation doesn’t work.
There are a number of situations in which family mediation is not appropriate. Here are some of the most common:
Coercion/other party unwilling to mediate – Mediation is purely voluntary. If one party does not wish to enter mediation, then they cannot be forced to do so. Mediation will not usually be appropriate where one party feels that they have been coerced to attend.
Domestic abuse – Mediation will not normally be appropriate if there have been any incidents of domestic abuse, or if there are any outstanding allegations of abuse.
Urgent cases – If the case is urgent for any reason then it will usually be more appropriate to take the matter straight to court, rather than go to mediation.
Bankruptcy – If the dispute is about money and you or the other party is bankrupt then mediation will not be appropriate.
Involvement of social services – Mediation in relation to arrangements for children will not usually be appropriate if you are currently involved with social services because there are concerns about the safety and wellbeing of your child or children.
Acrimony – To be successful, mediation obviously requires a measure of cooperation between the parties. If this is simply not possible because of high levels of animosity between the parties then mediation is unlikely to be appropriate, unless the mediator is able to address the issue.
Power imbalance – In some cases there is a ‘power imbalance’ between the parties, with one party, for whatever reasons, being the ‘dominant’ one, and the other the ‘subservient’ one. Again, the mediator will try to address this issue, but if they are not successful then mediation may not be appropriate in such cases.
Previous (recent) mediation unsuccessful – Lastly, mediation may not be appropriate in cases where it has been attempted in the recent past, but has not been successful.
Sometimes, despite the best efforts of an expert mediator, mediation is not successful. The mediator cannot force the parties, or one of them, to agree a settlement, no matter how appropriate the mediator may consider that settlement to be.
The mediation may come to an end because one or both of the parties withdraws. It may also come to an end if the mediator does not consider that there is any reasonable likelihood of the parties reaching an agreement, for example because the parties are too far apart, or because one of them is failing to negotiate.
In such a situation then the case will have to be sorted out by the court. It should be noted, however, that mediation can be ‘partly successful’, i.e. some issues are agreed between the parties, reducing the matters that the court has to adjudicate upon.
It should also be noted that, unless agreed otherwise by both parties, everything discussed in mediation is confidential. The court will not be aware of anything that was said or took place during the mediation.
If you would like more information about family mediation and how it works, see here.
To get the most out of mediation, it is worthwhile prepare. Here are some questions to ask yourself when preparing for mediation;
Once you are done preparing for mediation, here’s advice on what to do the mediation.
You may have questions such as: What questions to ask in mediation for custody? What questions does a mediator ask a child? Who can attend mediation? What to expect in mediation child custody? We have created an FAQ’s page that can help answer those questions.
