Can I Skip Mediation and Go Straight to Court?

In certain situations, you may be able to skip mediation and proceed directly to court to resolve a family law dispute.

In this article, our North West divorce solicitors explore why you may want to consider alternatives to family mediation.

Contact our specialist family lawyers for a consultation on how to resolve your family law disagreement effectively.

Is mediation compulsory?

If you are separating from your husband, wife, civil partner or unmarried partner, there are many matters to resolve, such as:

1. The parenting arrangements for your children
2. Who will stay in the family home
3. Whether maintenance and child support will be paid
4. The financial settlement if you are married or in a civil partnership
5. The property settlement if you were in a cohabiting relationship
6. Whether divorce proceedings should be started and by whom

Mediation can resolve all these matters and others.

Mediation is not compulsory. It is a voluntary alternative dispute resolution process. All parties to the mediation should attend voluntarily rather than through coercion. However, some people may feel compelled to mediate, as court rules make it clear that parties in most family law disputes must first attempt to resolve their issues outside of the court process.

If you feel pressured to go to mediation, it’s best to speak with a family law solicitor about your concerns and your alternative dispute resolution options.

Trying out family mediation

Family mediation begins with each party attending a Mediation Information and Assessment Meeting (MIAM). The purpose of the MIAM is for the mediator to:

1. Give you information about mediation
2. Discover what you want to achieve from mediation
3. Determine if you are a suitable candidate for mediation
4. Decide the type of mediation and mediator that best suits your needs

MIAMs are usually held separately, allowing you to discuss any reservations about attending mediation and for the mediator to ask questions to ensure that mediation is suitable for you and your former partner. For example:

1. It may not be apparent in the information sent to the mediator that you have experienced domestic violence in your relationship.
2. In a dispute over parenting arrangements for your teenage children, you may want the children to have a say about their living and contact arrangements. A specially trained mediator can involve older children in child-inclusive mediation*.
3. Your partner may inform the mediator that they are unwilling to provide any financial disclosure during mediation, which would render the process ineffective, as the mediator cannot compel such disclosure. In financial court proceedings, the court can order financial disclosure.

Here is a link to a Family Mediation Council video that provides a more detailed explanation of child-inclusive mediation.

Can I skip mediation?

Here are some of the situations where you can skip family mediation and go straight into court proceedings:

1. Your child is at risk of significant harm
2. There is a threat of child abduction
3. Risk of domestic violence
4. Your ex-partner is disposing of assets

Here are some examples of why you should bypass mediation:

• You fear your child will be taken overseas unless you secure a prohibited steps order to prevent parental child abduction by your ex-partner.

• Your estranged wife is selling or transferring assets, and you need the urgent protection of a Section 37 injunction order to stop them from disposing of assets to defeat your financial claims.
• There are serious current or historic domestic violence issues, and you do not think that any type of mediation is safe for you to engage in.

There are other scenarios where you can bypass mediation and initiate court proceedings. Family law solicitors recommend seeking expert advice before skipping mediation, as the potential consequences of making an incorrect decision can be severe.

Consequences of skipping mediation

If you choose to bypass family mediation because you don’t like the sound of the process, rather than because there was a good reason for doing so, then the consequence may be:

1. Delay
2. Additional expense
3. Risk of a cost order

Risks associated with bypassing mediation

Let’s look at the risks of skipping mediation in more detail:

• You may think you are speeding things up by making an application to the court, but the court could decide to adjourn your application for mediation to take place. Your decision to proceed directly to court may have slowed things down, as you could have been attending mediation sessions for several months while waiting for a first court hearing date.
• Starting court proceedings when you could have reached an agreement outside court adds to your costs. For example, the court application fee and the time spent in preparing your financial settlement or child arrangement order
• In some family cases, a judge may order that you pay all or a proportion of the other party’s legal costs. The court may be more inclined to make a cost order against you if the judge thinks you didn’t follow the rules and rushed into a premature court application without giving mediation or alternative dispute resolution a chance.

Deciding whether to skip mediation is a delicate balancing exercise that should be undertaken with the advice of a specialist divorce solicitor with a thorough understanding of the family law rules and the potential positive and negative implications of opting to bypass mediation.

Why don’t you want to go to family mediation?

People give several reasons for wanting to avoid family mediation. They include:

1. Don’t think their ex-partner will go to mediation
2. Don’t want to be in the same room as their former partner
3. Won’t be able to stand up for themselves in mediation
4. Want to leave it to a judge to decide what happens
5. Previous bad experience of mediation

Addressing why you want to skip family mediation

At a consultation meeting, a divorce solicitor can explain:

1. What mediation is
2. How family mediation works
3. The measures that can be put in place to address concerns about attending mediation
4. The alternatives to mediation
5. The advantages and disadvantages of mediation

What is family mediation?

Family mediation is a form of alternative dispute resolution that involves a specially trained family mediator.

A family mediator is an impartial third party who helps a separated couple resolve family issues, such as child care arrangements or financial settlement.

A family mediator will:

• Facilitate listening to one another, even when you may disagree with what the other person has to say.
• Help you find a resolution that works and is an acceptable compromise for both of you.

A family mediator does not give legal advice to the parties. They are there as a neutral facilitator to help you reach an agreement. That’s why many separating couples find it helpful to speak to a family law solicitor between mediation sessions, so they understand their legal rights, the likely court outcomes and have the confidence to mediate a reasonable compromise.

Types of family mediation

Family mediation sessions usually take place with a family mediator sitting in a room with both parties. The mediator uses their skills to help you reach your agreement, rather than have an order imposed on you by a family court judge. However, this type of mediation may not be suitable for everyone. Alternatives are available. For example:

• Shuttle mediation – you and your partner do not meet in the same room; instead, the mediator shuttles between rooms to facilitate a mutually agreeable resolution.
• Solicitor-involved mediation – each of you can have your solicitor involved in the mediation sessions, as well as provide legal support outside of the mediation sessions.

Measures to help mediation work for you

These are some of the measures our North West family lawyers can put in place to help you get the best out of mediation:

1. Write to your former partner to explain the implications of them choosing to skip mediation.
2. Advise you on how to select a family mediator to resolve your family law dispute.
3. Recommendations for shuttle mediation if you don’t want to be in the same room as your former partner.
4. Discussing safety measures to enable you to attend mediation with confidence. For example, arriving at separate times to your ex-partner and not waiting in the same waiting room.
5. Provide advice before you start mediation so you understand the range of orders the court has the power to make.
6. Offer specialist advice between mediation sessions to give you the confidence to negotiate effectively during mediation meetings.
7. Explain how counselling can provide the confidence boost you need to make mediation work.
8. Advise on how experts can be effectively involved in the mediation process to facilitate a mutually beneficial agreement—for example, a pension actuary or forensic accountant.
9. Legal representatives present during the mediation sessions to address the power imbalance.

Depending on the reasons behind your reservations about mediation, our divorce solicitors may be able to suggest other measures to help make mediation work for you.

The advantages of mediation

Some people think that talking to their ex-partner is pointless. However, it is worth hearing about the advantages of mediation as an alternative dispute resolution option.

The advantages of mediation are:

1. It is often quicker than court proceedings
2. It is cheaper than a court application
3. You and your ex-partner set the mediation agenda, helped by the mediator
4. The mediation process looks forward rather than analysing mistakes made during the relationship
5. Mediation is less adversarial than court proceedings
6. Mediation can come up with a bespoke solution to your family law dispute

When you are separating from a former partner, the mediation advantages are important because:

1. You need a decision so you can move on with your life.
2. You and your ex need to spend as little as possible on dispute resolution so you have more to spend on your children or rehousing.
3. Going over old ground, such as the reasons for the marriage breakdown, won’t help you reach a financial settlement.
4. If you plan to continue co-parenting your children, it is helpful to reach a parenting agreement that minimises conflict.
5. In court proceedings, the family judge must follow family law rules. For example, the judge cannot consider the needs of adult children still living in the family home or the caring responsibilities of one spouse for aging parents. Mediation offers the flexibility to consider what is relevant to your family.

The alternatives to family mediation

If you are of the view that mediation isn’t the best alternative dispute resolution option for you, then some of the other options are:

1. Collaborative law
2. Arbitration
3. Roundtable meetings with legal representation
4. Amicable Divorce – One Lawyer Divorce

Why you should consult with a family lawyer before skipping mediation

You should speak to a family lawyer before deciding whether to go to mediation because a specialist family law solicitor can:

1. Explain the mediation process and your other alternative dispute resolution options.
2. Help you choose the right type of mediation model and mediator to facilitate a mutually agreeable resolution with your former partner.
3. Offer advice on potential likely outcomes, costs and timescales if you make an application to court for a divorce settlement or child arrangement order.
4. Advise you if mediation is not appropriate, such as when you need an urgent court order, such as a prohibited steps order.
5. Explain how they can provide legal support and guidance in between mediation sessions to give you the confidence to reach a mediated agreement.
6. Convert your mediated agreement into a binding financial court order.
7. Help you obtain a no-fault divorce, enabling you to implement parts of your financial court order, such as a pension sharing order.

At Evolve Family Law, our family law specialists offer a mediation support service, providing all the advice and guidance you need, from your initial inquiry about mediation to helping you secure an agreed court order following a successful mediation.

Speak with a Family Law Solicitor Today for Advice on Family Alternative Dispute Resolution Strategies.