Family mediation is increasingly recognised as the preferred way to resolve disputes following separation or divorce. It provides couples with the opportunity to reach agreements about finances, property and arrangements for children in a constructive and cost-effective way. But what happens if one person simply refuses to take part?
In most cases, an application to family court cannot be made until the applicant has attended a Mediation Information and Assessment Meeting, or MIAM. If the other person declines to participate after being invited, the mediation process cannot continue, but the applicant will be able to proceed with their court application.
Although nobody can be forced to mediate, refusing to engage without good reason can have consequences. The courts increasingly expect people to make genuine efforts to resolve disputes without litigation wherever it is safe and appropriate to do so. A refusal to consider mediation may be taken into account when the court decides whether a party has behaved reasonably during the proceedings.
In financial cases, an unreasonable refusal to mediate could influence the court’s decision on legal costs. While costs orders are less common in family proceedings than in other civil disputes, the court does have discretion to penalise conduct that has unnecessarily increased expense or delayed resolution.
However, perhaps the greatest consequence of refusing mediation is the loss of an opportunity to retain control over the outcome. In mediation, decisions are made by the participants themselves. Once a matter reaches court, the final decision rests with a judge, who may impose an outcome that satisfies neither party.
At Hampshire Mediation, we encourage separating couples to explore mediation before embarking on court proceedings. Even where agreement is not reached on every issue, mediation often narrows the areas of dispute, saving time, reducing costs and helping families move forward with greater confidence.