There may come a time when you question whether you should stop mediation and go to court instead to secure your child arrangement order, or divorce financial settlement. Perhaps your ex-partner refuses to engage properly in the process and they won’t listen or make compromises. Stopping divorce/family mediation is a big decision to make. Read on for our advice on when you should call it a day.
There may come a time when you question whether you should stop mediation and go to court instead to secure your child arrangement order, or divorce financial settlement. Perhaps your ex-partner refuses to engage properly in the process and they won’t listen or make compromises. Stopping divorce/family mediation is a big decision to make. Read on for our advice on when you should call it a day.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Naheed Taj. Naheed is a highly acclaimed family solicitor with a successful track record in dealing with complex and challenging family law, divorce, and child cases.
What are the types of divorce/family mediation?
Under the Children and Families Act 2014, it is generally required that, before making an application to the family court, the parties attend a Mediation Information and Assessment Meeting (MIAM).
Family mediation can help with a variety of issues, including:
- Arrangements for where the children will live, how they will spend their time with each parent, and how to pay for things such as nursery costs
- How to divide the matrimonial asset pot and dealing with any debt
- Formalising living arrangements, such as the mechanics of separation
- Issues relating to schooling, vaccinations, and other educational requirements
- Arrangements for holidays, birthdays, Christmas, and other special times
- Discussing arrangements for grandparents and other family members to see the children
- Other parenting disputes/issues
What actions might mean that mediation should be stopped?
Although family mediation works for many people, it isn’t right for everyone. It may need to be stopped if:
Domestic abuse or violence
If there is any history or allegation of domestic abuse or violence between the parties, mediation may not be suitable. Mediation relies on both parties being able to speak freely and negotiate equally, which may not be possible in cases where one party feels threatened or intimidated.
Evidence or disclosure of emotional, physical, or financial abuse during mediation can be a clear sign it should be stopped. This includes abusive behaviour that surfaces during the mediation sessions.
Imbalance of power
Mediation requires both parties to be on an equal footing. If there is a significant imbalance of power (financial, emotional, or psychological), mediation may not be effective. One party may dominate the conversation, pressurise the other party into agreeing, or be unwilling to compromise, indicating an unfair advantage.
If the mediator feels one party cannot express their views or is being overpowered by the other, they may decide to end the process. In addition, you may also reach the conclusion that you would feel safer with the court’s involvement.
Failure to disclose information
Mediation relies on full and frank disclosure of financial and personal information. If one party refuses to provide necessary documents or withhold significant details (such as finances), mediation is unlikely to lead to a fair agreement. For example, hidden assets or dishonest financial disclosure might make further discussions unproductive.
No Progress or stalemate
If the mediation sessions have not led to any progress after a reasonable number of meetings and the parties remain in a deadlock, it may be sensible to consider stopping. If one party is unwilling to negotiate, compromise, or make any concessions, it may signal that the mediation process is unlikely to succeed.
Lack of willingness to participate
If your ex consistently refuses to attend mediation sessions or shows up but refuses to engage meaningfully in the process, it may be a sign that mediation should be halted. Where a party is disengaged, distracted, or uncooperative, mediation cannot proceed effectively.
One or both parties acting in bad faith
If either party enters mediation without the intention of reaching an agreement and is simply using the process to delay legal proceedings or manipulate the situation, mediation may need to stop. Bad faith includes deliberately delaying proceedings, being intentionally obstructive, or using mediation as a stalling tactic to avoid court.
Safety concerns
Should you have any concerns about your safety (e.g., threats made during mediation or concern about the welfare of children), the process should stop. Mediators are trained to be alert to signs that either party may feel unsafe, and if concerns arise, they will stop the mediation. But if the behaviour is more secretive and only happens when you are alone with your ex, you may decide to end it yourself.
Mental health issues
If either of you has a significant mental health issue that impairs their ability to make informed decisions or participate fully in the mediation, it may not be appropriate to continue. A party may appear confused, erratic, or unable to focus during the process. If this impairs their ability to engage with the mediator and the other party effectively, the mediation should be stopped.
Child welfare concerns
Concerns regarding the welfare of the children involved raised during the mediation process, may result in the mediator stopping the process and referring the case to the appropriate child protection authorities. Allegations of child abuse, neglect, or concerns about the children’s wellbeing may indicate that mediation is not the appropriate avenue for resolving disputes, and a more formal intervention such as a court process may be required.
Legal complexity
If the issues involved are too complex for mediation (e.g., highly complex financial arrangements, international jurisdiction issues), it may be stopped. When the legal issues involved require judicial determination or the involvement of legal experts, the mediator may stop the process and advise the parties to apply to court instead.
Lack of agreement
If it becomes apparent that you are so fundamentally opposed that an agreement is impossible, further mediation may be futile. In cases where the dispute cannot be resolved court intervention may be the only way to obtain a legal resolution.
Mediator’s assessment
The mediator has a duty to remain impartial and assess whether mediation is still appropriate at all stages of the process. If they believe the parties are not benefiting or that it is no longer constructive, they can stop it. The mediator may decide to terminate mediation if they assess it will not lead to a fair or workable outcome for both parties.
Ultimately, mediators are trained to identify any red flags and stop the process if it becomes unsafe, unfair, or unproductive for the parties involved.
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