posted 16th September 2016
Fines for Refusing Mediation: What Actually Happened
The proposal
In March 2023 the government consulted on making mediation compulsory for separating couples before they could apply to court. The aim was to reduce the number of cases reaching an already overloaded family court and to keep separating families out of an adversarial process. It drew a great deal of objection, much of it centred on whether anyone forced to the table would negotiate in good faith.
What was decided
On 26 January 2024 the government published its response and confirmed that mediation would not be made mandatory. No fines were introduced.
What changed instead
The Family Procedure Rules were amended with effect from 29 April 2024. The changes apply both to financial cases and to children cases, and they matter more in practice than the proposal they replaced.
- The definition of non-court dispute resolution was widened beyond mediation to include arbitration, evaluation by a neutral third party and collaborative law
- Both parties must now file a form setting out their views on using non-court dispute resolution
- A Judge may adjourn proceedings to allow the parties to explore it, without needing their agreement
- Failing to attend a MIAM or to take part in non-court dispute resolution without good reason can now be taken into account when the court decides who pays the costs
What this means in practice
Nobody is compelled to mediate. But a party who refuses without a good reason is now taking a financial risk, because the costs rules allow a Judge to depart from the usual position that each side pays its own way.
The practical effect is close to what the original proposal was reaching for, arrived at differently. Rather than a penalty for refusing to attend, there is a consequence for refusing unreasonably.
Where this leaves the financial settlement
Most separating couples want to avoid court anyway. The change simply means that an attempt to settle out of court is now expected rather than optional, and that the attempt is worth recording.
Where both parties have taken part in a non-court dispute resolution process about the same dispute within the four months before an application to court, an exemption from the MIAM requirement applies. The court requires written confirmation from the provider, signed and submitted with the application. We are the provider, so we supply that confirmation.
So even where mediation does not produce agreement on every point, the attempt still counts for something concrete.
