posted 13th November 2023
What Happens If Mediation Does Not Work
Most people come to mediation hoping it will settle everything. Sometimes it does not. It is worth knowing what that means before you start, because the answer is rarely as bad as people expect.
Partial agreement is still progress
It is uncommon for mediation to achieve nothing at all. Far more often both parties agree most of the settlement then remain apart on one or two points — the value of the house, or how a pension is to be divided.
Narrowing a dispute to two issues is a much better position than starting with everything in dispute. Whatever happens next costs less because less is left to argue about.
The attempt itself counts for something
Since April 2024 the courts expect separating couples to make a serious attempt to settle out of court. A Judge can take an unreasonable refusal into account when deciding who pays the costs.
There is also a practical benefit. 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 a mediation that does not fully succeed still leaves both parties better placed than one that never happened.
If one party will not engage
Mediation depends on both parties taking part. Nobody can be compelled to attend. But refusing carries a cost risk now that it did not before, and that is worth pointing out early rather than late.
What the alternative involves
A contested financial application means each party instructing a solicitor, two sets of fees charged by the hour, several hearings and a wait measured in months rather than weeks. At the end of it a Judge decides the terms, and neither party has any say in what those terms are.
That last point is the one most people underestimate. In mediation both parties keep control of the outcome. In court they hand it to someone who has never met them.
Mediation is not a single attempt
People sometimes treat a difficult session as the end of the process. It usually is not. Positions change once figures are on the table, once a pension valuation arrives, or simply once both parties have had time to think.
Coming back to mediation after a pause is common. So is settling at the door of the court, which is the most expensive possible moment to reach an agreement that was available months earlier.
