Do I have to attend family dispute mediation? 15 exemptions explained

Since April 2014, it has been compulsory for those making an application to court about child arrangements, financial relief on divorce or the dissolution of a civil partnership to consider mediation beforehand.

This is because mediation is usually quicker and cheaper than court proceedings and therefore likely to cause less damage to the relationship of those involved.

The mediation process must be started by attending a MIAM (Mediation Information & Assessment Meeting). This involves an accredited family mediator explaining how mediation works and whether it’s suitable for a particular case. 

While it’s generally accepted by the courts and the legal profession that mediation is a better way to resolve these disputes than going to court, it may not be suitable for every case. 

Here, Hannah Saxe outlines the 15 exemptions where court proceedings may be more appropriate than mediation.
 

1. Domestic abuse

If you’ve been the victim of domestic abuse, you don’t have to attend family mediation. However, you do need to provide evidence of this to the court with your application. 

This can include:

• Proof of the other party being arrested for domestic abuse offences or related criminal law proceedings.
• Written evidence from a medical practitioner, domestic abuse organisation or other professional body to show that abuse has taken place.

2. Living overseas

If either you or the respondent to your application live outside of England and Wales, you’re not required to attend a MIAM as the rules currently stand.

However, with the growing use of online mediation, this could change in the future. 

3. The other party’s address can’t be found 

If you don’t know where the other party lives and have taken reasonable steps to find out, it’s impossible to invite them to mediation and no MIAM will be required. 

4. Previous MIAM 

If you’ve already been to a MIAM in the last four months, you don’t need to attend a new one. 

5. You’re already involved in court proceedings 

If there’s an ongoing case at court and you’re making a new or supplementary application, you won’t need to attend a further MIAM. 

However, you will be required to provide details of the existing case to the court. 

6. Urgency

If the application is considered urgent by the court, a MIAM wouldn’t be required as this could slow down proceedings. Cases might be deemed urgent where there’s a risk to life or serious harm to a child or risk of international abduction of the child. 

7. Child protection 

If the application is about a child subject to a child protection plan or the local authority is making enquiries into the safety of the child — for example, if they’ve been taken into police protection — then no MIAM is required before making the application. 

8. Without notice applications 

If the application is to be considered by the court without informing the other party, then no MIAM is needed. 

9. Disability

If you have a disability which means that you’re unable to get help from a mediator within 15 miles of where you live, then so long as you have tried at least three potential mediators, you don’t have to attend a MIAM. 

However, the court will want to see evidence that you’ve tried to arrange a MIAM. Remember that it’s possible to have a MIAM online or over the telephone. 

10. Prison or bail conditions 

If either party is in prison or has bail conditions that mean they can’t attend mediation, then no MIAM is required. You can ask for permission to mediate while subject to bail conditions, though this may not be allowed by the Police. The court will ask for evidence of bail conditions. 

11. The applicant or respondent is a child 

Only adults can mediate, so if any party is under eighteen years of age, the case will go straight to court. 

12. You don’t have a mediator nearby

If you can prove that there’s no family mediator within 15 miles of where you live, you don’t have to attend mediation. However, you should consider online or telephone mediation. 

13. Mediator availability 

If you’ve tried all (or at least three) mediators within 15 miles of where you live and they don’t have availability to provide a MIAM within three weeks, then you don’t need to wait and can make your application without the MIAM having taken place. 

14. Consent orders 

If you’ve already reached an agreement and are sending an agreed order to the court for consideration by a Judge — which you’ll invite the Judge to approve to make it legally binding — you don’t need to mediate and no MIAM will be required. 

15. Bankruptcy

Bankruptcy makes applications about finances more complex. This is because the bankrupt individual isn’t in direct control of their assets and so the court must become involved.

Talk to us 

In most cases, you’ll be required to attend at least one MIAM to try to resolve the dispute. 

Our award-winning family law team has extensive experience in using Non-Court Dispute Resolution and Alternative Dispute Resolution methods — including mediation — to resolve family matters including child arrangements, financial disputes and separation.

Helen Marriott is qualified to adjudicate on interim and substantive financial issues and Cara Nuttall is a qualified Children Arbitrator.

If you’d like to talk to us about which NCDR method is best for your situation, get in touch by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.