What are the reasons to refuse mediation and what will happen if I don’t attend?

Since April 2014, it has been a mandatory requirement before applying to court for a child arrangements or financial order to attend a MIAM (Mediation Information Assessment Meeting). This meeting is to help parties consider the benefits of family mediation. In this article we discuss the reasons you can legally refuse to attend a MIAM and the repercussions of refusing to do so.

The 15 exemptions for not attending a MIAM

Within the legislation, there are fifteen certificate exemptions the court accepts for not attending a MIAM. These are:

1. Domestic violence/abuse

Victims of domestic violence/abuse do not have to attend mediation. That said, if you are relying on this exemption, you will need to provide evidence to the court. Perhaps the other party was arrested for a domestic violence incident or there are details of past criminal proceedings. Or you can obtain written evidence from a GP, hospital, domestic abuse organisation, or other professional body to confirm domestic abuse has taken place.

2. Either party lives overseas

If either of you are resident outside the UK, you do not need to attend a MIAM because physical attendance is problematic. However, with the increasing use of online video platforms, this may change in the future.

3. Not knowing where the other party lives

If you have taken reasonable steps to locate the other party and don’t know where they live, then it will not be possible to invite them to mediation.

4. Previous attendance at a MIAM

If you have attended a MIAM within the last 4 months, you do not need to attend another. The MIAM certificate must be dated within 4 months, so if the date is outside this, then attendance would be necessary.

5. There is a linked case already at court

If there is an ongoing case and you are submitting a supplementary or new application, you will not be required to attend another MIAM. However, proceedings need to be active and live, so if the case has been closed, it will not count even if the same individuals are involved.

6. An urgent hearing is required

The degree of urgency will be determined by the court, with such circumstances usually involving a risk of life or serious harm to the child. It can also be used if the child is about to be unlawfully removed from the UK.

7. Child protection concerns

If the child concerned is subject to a child protection plan or the local authority is making enquiries into the safety of the child, then attendance at a MIAM is not required.

8. If the hearing is made without notice to the other party

Again, this revolves around the safety of the people involved, e.g., the children or one of the parents.

9. Either party has a disability that cannot be accommodated

If either party has a disability preventing them from getting to a mediator within 15 miles of their home, then, providing they have tried at least 3 mediators (depending on area availability) attendance is not required. The court will require evidence of the various attempts to get to a mediator.

10. Either party is in prison or there are bail conditions

In either of these circumstances, mediation cannot take place. Whilst permission can be sought to mediate where bail conditions or licence terms exist not to contact the other party, it is nevertheless a valid reason not to attend a MIAM.

11. The applicant/respondent is a child

Mediation can only take place between adults. If the applicant or respondent is under 18 years of age, they do not have to attend a MIAM and the matter can go straight to court.

12. Availability of mediator within 15 miles

If you can demonstrate there is no family mediator within 15 miles of where you live, then you are not required to attend mediation.

13. Availability for a MIAM meeting

If all the mediators within 15 miles of where you live (or at least three) have informed you they cannot hold a MIAM within 15 working days (3 weeks), then you do not have to wait and can submit your application form to the court without the MIAM certificate.

14. You are submitting a consent order

If you have both made an agreement and wish the court to make it legally binding, then you are not required to mediate because an agreement has already been made.

15. You are making a claim for a financial order and either of you is about to be made bankrupt.

In this situation, mediation will not be suitable, so attendance at a MIAM is not required.

Will it go against me if I refuse to attend mediation?

The conduct of the parties and demonstrating a willingness to compromise, mediate and resolve issues between you could be frowned upon if you decide not to mediate and the court believes you did not have a good reason for not attending a MIAM. It may also count against you if your conduct is considered to have frustrated the process.

What conduct can be considered as frustrating the process?

• Failing to reply to a mediation invitation
• Receiving an invitation and denying you had received it
• Booking appointments and persistently cancelling them
• Insisting on weekend appointments or a date months in the future
• Insisting that another person/your solicitor is present
• Declining mediation because you/the other party refuses to move from your/their position
• Refusing to mediate because you do not trust/like the other party
• You don’t want to be in the same room as the other party (shuttle mediation can resolve this issue)
• Declining mediation because you cannot get childcare sorted out (you would have to arrange childcare to attend court)
• Setting particular conditions on mediation taking place (for example, only agreeing to mediation if the other party will comply with a demand beforehand)

The bottom line from the family court seems to be that mediation should at least be attempted and entered into in good faith, unless either the mediator deems the case unsuitable, or one of the 15 exemptions set out above applies.

If you have concerns about your divorce and you feel you need legal advice, contact specialist family solicitor Mark Heptinstall of Slater Heelis. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.