Mediation is a mandatory precursor to an application to the family courts, but also an immensely helpful tool in reaching an agreement.
Our ultimate guide to family court mediation may help you decide which path to follow.
We regularly get emails from people who are keen to have a court order in place but are confused about the rules surrounding family court mediation and MIAMs.
This is usually because they have been told that they have to attend mediation before they can apply for a court order or that they will need a mediators sign-off to proceed.
The information about the mandatory mediation requirement for applications for Child Arrangements and related orders is spread out and often difficult to put together, meaning people are left with questions about the process and what they need to do. Our Ultimate Guide to Family Mediation hopes to address this.
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This guide will answer all your questions about family court mediation and the MIAM process by giving you all the information you need to properly understand your obligations and the steps you need to take to get help making decisions about your children.
Do I have to attend Family Mediation before I can apply for a court order?
It is entirely normal for communication between ex-partners to be strained, if it is possible at all.
The courts are aware of this but equally, they are too busy to be able to become involved in making decisions on cases that might be easily decided if people were better able to talk to each other and even if the issues between parents are not simple, mediation may still be very helpful.
This is what family court meditation is intended to do, facilitate communication and help people agree on what the best thing for their child is.
You may well have heard of people talking about mediation when you mentioned you were thinking of applying for a court order “you have to go to mediation before you can go to court, it’s mandatory”, but in fact it isn’t, you don’t have to attend family court mediation at all, and if you choose to do so, it is entirely voluntary.
The only requirement is to have attended a short meeting called a Mediation Information and Assessment Meeting or MIAM, which explains how mediation might help you and decide if mediation is something you would like to try.
This is often called a ‘MIAM’ for short and they are easy to arrange, don’t cost very much and you don’t have to go with your ex if you don’t want to.
What is a Mediation Information and Assessment Meeting (MIAM)?
A Mediation Information Assessment Meeting is a requirement for anyone making an application to the family court. It has several purposes but is primarily designed to assess whether mediation might be a good way for people to get help in making decisions about their children before they apply for a court order.
During the MIAM you will meet with a mediator who will explain to you what mediation is, how it would work, and talk to you about other forms of dispute resolution that you might like to think about.
The mediator will want to understand the nature of the dispute between you and the other parent and what you would like the outcome to be.
They will also want to pick out the issues which are common ground between you. Normally there is at least one thing that you will agree on….that you both love your child, so the MIAM will explore whether that can be used as the basis for you agreeing on other things.
The mediator will hopefully be looking to establish a possible plan for future mediation sessions. They may also signpost you towards other forms of support which might be helpful to you in reaching an agreement without needing to go to court.
It can be useful at this stage to have prepared a parenting plan to talk through with the mediator to explain what you want to happen and why that is the best thing for your child(ren).
If you turn up with a clear plan your mediator can put that plan to your ex-partner and if they don’t agree with it use your plan to make them explain what their plan is and why they think that is better for your child(ren).
Do I have to go to the same mediation session or MIAM as my ex?
If you are the person applying for the court order you will need to arrange a MIAM for yourself before you are allowed to submit your application to the court.
When you do this you can speak to the mediator and let them know whether you would be willing to meet with your ex or if you would prefer separate MIAMs. The mediator will be happy with either.
The mediator will want to meet with the other adults involved in the dispute and they will be contact them directly, inviting them to book their own MIAM within a specified timescale, usually 14 days.
Whilst your views are important the mediator will also be assessing you and any other parties for your suitability for family court mediation.
There are a number of things the mediator will be looking out for, for example, assessing your mental capacity or looking for evidence that there has been domestic violence in the relationship.
If there is strong evidence of domestic violence, such as lots of criminal convictions for domestic abuse offences, the mediator is unlikely to think that mediation is a good idea.
There may be a number of other reasons why mediation might not be felt suitable for your situation, and some of those reasons make you exempt from attending the MIAM at all. For example, if you or your ex are in prison, or you have been declared bankrupt recently.
What are the reasons for being exempt from attending mediation?
There are a number of reasons why either family mediation or attendance at a MIAM would be considered inappropriate.
These are set out in rule 3.8(1) of the Family Procedure Rules which you should read if you wish to claim that an exemption applies to you.
The Family Proceedure Rules are long and quite dry so we have briefly explained them below with details of what each exemption means and the evidence likely to be needed by someone using them as a reason not to attend a MIAM.
This is important because it is not sufficient to simply tick the box on the application form saying, for example, that you are excused from the MIAM because you have child protection concerns, that there was domestic violence or you couldn’t find a mediator, you need to have firm evidence to prove that you meet the criteria for whichever exemption you are using.
The risk is that if you do not provide evidence to support your exemption the court is capable of, and fully prepared to, issue directions that you do attend one and it may adjourn your case until you have completed your MIAM. This can cause you significant delays which you would rather avoid.
The exemptions are as follows:-
There is or has been domestic violence:
Domestic violence is the most common reason we hear for which people state they believe they are exempt from the mediation requirement.
However it is not sufficient to simply say your relationship was an abusive one, you must provide evidence that it was. The range of satisfactory evidence is long and comprehensive but is thankfully also very clear.
To use domestic violence as a reason not to attend a MIAM you must be able to tick at least one item on the list included in Practise Direction 3A of the Family Court Procedure Rules. It is important that you keep yourself safe if you have been in an abusive relationship so if you need help understanding if you do meet these criteria please get in touch.
Child Protection Concerns:
This exemption allows a potential applicant to identify a child of the family as being:-
- subject to a Section 47 investigation by a local authority; or
- a child who is currently the subject of a local authority parenting plan and to provide evidence in support of that status.
Grounds of Urgency:
The prospective application is urgent because there is an actual risk to the life, liberty or physical safety of the applicant or the subject child or that should the application be delayed by attendance at a MIAM such a risk would arise.
Urgency exemption grounds would therefore apply in scenarios such as an imminent risk of the removal of a child from the UK, a threat to life, unreasonable hardship, destruction of evidence which would make it impossible to make a decision later or the seizure of jurisdiction by a court within another country.
Previous Attendance at a MIAM:
You can escape attending mediation if, in the 4 month period prior to making the application, the applicant had attended a MIAM or another form of dispute resolution for the same or substantially the same matter, or, that within the same 4 month period an application had been made to which another exemption had at the time applied.
This exemption is particularly useful as it removes the requirement to attend mediation if you need to make an application within existing proceedings, such as a C2 application.
Bankruptcy:
If the prospective applicant is an undischarged bankrupt, can provide evidence of a submitted application for bankruptcy, has produced a bankruptcy order or can show a creditors petition for a bankruptcy order they can make an application without the need to have attempted mediation.
Ex Parte Applications:
Mediation is not required if the prospective application would be made ex parte. This means that the application would be made without the other party (respondent) being told and a hearing would be held without the respondent being present.
Ex parte, or Without Notice, hearings are normally allowed if there is a significant risk of serious harm being caused to a child or the applicant if the respondent was made aware of the application. There is a very high bar to ex parte hearings and they are generally considered in emergency child protection cases which do not involve the local authority (who have access to other forms of emergency applications).
Obviously, if a mediator were to contact a prespective respondent inviting them to attend mediation they would be made aware of the potential for an application to the courts, so this exemption is allowed to prevent that from happening by ensuring an application to be made ex parte using this exemption.
Should an application be made requesting the court hold a hearing without the respondent being given notice and the court not agreeing that there is sufficient urgency and/or seriousness, it is entirely open to the court to deny both the application and the exemption and to oblige the parties to mediate, which not only causes delay, but exposes the child and applicant to the risk the application was hoping to avoid.
Disability:
Mediation can be avoided if the prospective applicant is disabled and there are no facilities in the local area which can accommodate their attendance at a MIAM.
The applicant would need to produce evidence of the efforts they had gone to in attempting to locate an appropriate venue such as a list of the name, address, website, email address and date of contact for each facility they had attempted to arrange a MIAM with.
This is clearly an exemption subject to both individual and local circumstances. Since the national lockdown most, if not all, mediators are perfectly capable of offering mediation online, so anyone relying upon this exemption should be prepared to justify its use.
Should an applicant fail to convince the court of their use of this exemption they can expect significant delays in their case and being obliged to attend mediation.
General Inability:
This exemption is a bit of a ‘catch-all’ for anything else and states that the prospective applicant is incapable of attending a MIAM where no other exemption applies.
Sufficient evidence that this exemption applies will include the applicant being in prison at the time the application was made, producing evidence of bail or licence conditions which prohibit their attendance, the applicant not being habitually resident within the UK or evidence that despite best efforts there are no facilities capable of arranging a MIAM within 15 working days.
In the scenario that the aplicant states there were no mediators capable of providing mediation services the person claiming such an exemption would need to produce evidence of the efforts they had gone to in attempting to locate an appropriate venue such as a list of the name, address, website, email address and date of contact for each facility they had contacted along with their correspondence with the potential providers setting out their reasons for being unable to provide the parties with mediation.
How do I claim an exemption from attending family court mediation applies in my circumstances?
If you want to claim an exemption from attending a MIAM the correct way to do it is to submit your application form as standard but to ensure you tick the appropriate box for the exemption you are claiming on the application form. You can find out more about applying for a Child Arrangements Order in our guide.
You can submit evidence in support of your chosen exemption with your application if you wish but if you don’t want the person you are in a dispute with to see it you can just as easily take your evidence for the exemption with you to court for your first hearing as this will be where the court queries the matter if it is going to.
If you find yourself at the first hearing without that evidence, and the court challenges you, you may not receive a warm welcome. You could also submit your evidence to the court in advance and if you wish to do so you should get in touch with us.
The court may issue directions for the service of your evidence by a fixed date, or more likely, simply order you to attempt mediation and come back to court to discuss how that went if it does not believe the exemption applied.
If the exemption isn’t evidenced or was otherwise invalid the court may decide to send either one or both of you away to arrange and attend a MIAM and could adjourn your case until you have done so leading to a significant delay. It is long recognised that the very fact that there are court proceedings is a source of potential harm to your child and the cause of an avoidable delay is unlikey to attract the courts empathy.
The absence of evidence may also get picked up in the initial allocation and gatekeeper screening when you submit your application but if you have filled out the form correctly and even listed the evidence you rely on the legal adviser or judge will be unlikely to refuse your application and could instead contact you and ask for the evidence to be sent to the court if they want to see it.
This removes the risk that your evidence will be automatically sent to the other party when the application is issued but is for the court to decide if it wishes to offer you that gift.
In our experience courts tend to adopt a supportive approach to family court mediation and dispute resolution rather than look to make the situation harder for the parties. If you have a reasonable and genuine belief of exemption, even if the court feels you were wrong or acted hastily, it is unlikely you would face its wrath. Conversely, if you are blatant about your contempt for the value of mediation or the court feels you intentionally set out to mislead or trick it or abused the exemptions, you can’t then grumble if the courts call you out on that.
Those looking to rely upon an exemption from the mediation requirement would be wise to seek advise on their grounds and the strength of their case. If you think an exemption might apply to your case you would be well advised to make use of our free hour consultation so you can discuss your circumstances to better understand whether or not you should attempt to request an exemption as, at the very least, you coud face a significant delay and increased costs.
You can book a free 1 hour consultation with our family team below.
What happens if my ex refuses to attend family mediation?
There are three further circumstances where an exemption can be applied which come from the mediator themselves.
Those exemptions are to cover situations such as your ex refusing to engage with, or failing to attend, mediation or where mediation is considered unsuitable by the mediator. These can be referred to as mediator exemptions and they apply where:-
You ex ignores the mediators request to book their MIAM:
Once you have attended a MIAM your mediator will contact the respondent, who is usually your ex, and request they contact them to book their own, separate, MIAM. Mediation can not proceed until you have both attended a MIAM.
They are usually given 14 days to respond to the mediator to arrange a date and time for their MIAM.
If they fail to contact your mediator in this timeframe the mediators exemption applies.
Differrent mediators have differrent policies on this. Some may remind your ex and give them a second deadline, some will try 3 times, other continue until they get a response. This is at the mediators discretion so when you choose a mediator you should check what their policy is in this regard, particularly if you think your ex will ignore them.
If your ex does not make contact with your mediator within a reasonable period of time (as defined by the mediator) this exemption will inevitably be applied.
You should contact your mediator and request they provide you with the mediators sign-off to allow you to make an application to the court. There may be a small charge for them doing this and, again, if you think your ex will ignore them you should check in advance what this charge will be as it will vary.
Once your mediator has given you their exemption form, which includes the mediators reference number, company name, mediator name, date, and signature, you can make an application to the court.
Your ex tells your mediator they will not mediate with you:
If your mediator contacts you ex and they tell them that they will not mediate, this exemption bites.
It may apply at any point in the mediation process, even if it feels like things are going well. This is because mediation is intended to be entered into voluntarily and openly.
It can also occur where: –
- you have been attempting mediation which suddenly stopped;
- where it is clear to the mediator that mediation will not help;
- where your ex appeared to want to engage and made a booking, but did not pay to confirm the booking;
- where your ex made a booking, paid for it, but did not attend and did not provide evidence (such as a doctor’s fit-note) to explain why they did not attend; and
- for any other reason the mediator feels applies.
Essentially, your mediator will always want to provide mediation (as they get paid for providing mediation services, but as soon as your ex acts in a way that makes it clear to the mediator that they will not engage they will tell you that they are willing to give you their sign-off.
A mediator can charge you for providing their sign-off and once you have it you have 4 months to make an application to the court.
Your ex attended a MIAM but your mediator feels that mediation is not appropiate:
If during either of your MIAMS, the mediator feels that mediation would not be appropiate, then this mediators exemption is engaged, irrespective or either of your views. It is a refusal to provide mediation to you.
This could arise because you or your ex admitted to domestic violence or abuse agianst the other, or because you showed the mediator strong evidence of domestic violence or abuse having occured, such as convictions of offenses. It may also be because the mediator felt either you or your partner lacked the intellectual capacity to understand mediation or for any other reason the mediator feels applies. You may not be told why this exemption was engaged, but the court will.
The mediator’s ability to recommend against mediation following the parties attending a MIAM is a basic safeguarding check. The Mediator is assessing the parties’ suitability for mediation.
Outside of the comprehensive domestic violence criteria, the family court mediation process includes a safeguarding and risk assessment screening of anyone who attends a MIAM. Therefore although a person may not be able to provide strong evidence of domestic violence the mediator may still identify issues of concern that make mediation inappropriate.
Mediators do not have access to information such as police records, social services or medical records as may be accessed by a court so a mediator’s refusal to commence further mediation between the parties is designed as a further safeguarding ‘catch-all’ for anything else the mediator considers relevant and the scope of reasons as to why they might feel mediation should not continue may be quite broad and may deviate from the evidence required for the applicant to claim an exemption.
So, for example, a person may allege domestic violence even if doing so might be considered later as having been false allegations and a mediator may still determine that mediation is unsuitable on those grounds despite the fact the person is unable to provide evidence of violence.
The court and Cafcass are able to undertake their own, far more comprehensive checks of those records to decide whether or not the allegations are false or genuine later in the process.
It is better for the mediators to err on the side of caution now and let the courts explore the implications of their decision later than to force parties to mediate where there is abuse having occured.
Will my ex look bad if they do not attend family court mediation or engage poorly with the process?
People often believe that their ex will be criticised or punished by the court if they do not properly engage with the mediation process, that it will reflect badly on them. This is not the case.
The court will not interfere with the voluntary platform that mediation stands upon nor attempt to extract information about what was discussed in mediation.
If a MIAM was attended and the parties are in court it is evident that mediation was not the correct way forward and a court is unlikely to slow proceedings down by concerning itself with the details behind that. Doing so would really undermine the confidential and voluntary nature of the family mediation process.
That said the court is not without teeth should it wish to check if the legal requirement to attend a MIAM was properly met and to explore the validity of any exemptions being claimed.
A court may check if the MIAM was attended by both parties and if an exemption was claimed it may decide to consider the evidence to support that claim.
If it is not satisfied one or both of you can be sent on a MIAM at any point in proceedings.
However, no court will either critisise or punish either party for their approach to mediation. Not attending, for any reason, will not make them look bad or cause them to be treated less favourably by the court however poor you feel their conduct might have been or worthy of the courts scorn you feel they deserve.
The simple view of the court is that if you are before them mediation has failed, the reasons for that failiure do not impact them and so it will proceed on the basis that everyone has clean hands.
What happens in Family Court Mediation?
If you have attended your MIAM and the mediator agrees that you may be able to reach an agreement with the help of mediation then this will be arranged and a first session will be booked.
Mediation can be very effective if the parties are willing to negotiate and talk about their dispute. It can also teach you new skills to help you with communicating with your ex in the future.
Parenting plans and mediation agreements can be useful because you can include decisions about things that the court won’t be able to help you with, such as child maintenance payments.
If you have a parenting plan you can take that to mediation with you and that parenting plan can form a useful starting point. You can also draft a parenting plan to take with you to show the mediator what you would like to happen.
If you do proceed to mediation then you are doing so entirely voluntarily, having attended the MIAM your legal obligations have been met and you are there to hopefully avoid going to court for a decision to be made.
This is important because the court should be the last resort and there is no guarantee at all that the court will do what you want them to do. It is free to make any decision it likes, even something that neither you nor your ex wants.
Family mediation is covered by legal privilege. This means that everything you discuss in mediation is confidential and nothing you talk about can be revealed without your consent. This includes being used against you in court.
The only exception to this is if you tell the mediator something which indicates there is a serious risk to life or of physical injury to a child, yourself, the other party or any other person, or you provide information about a serious criminal offence. If you do the mediator is obliged to share that information.
The mediator is nothing to do with the court and the court is not told who your mediator is. It is unlikely the court will know anything at all about any mediation, why it didn’t work or ask you anything about it.
You would normally attend pre-booked sessions with the other parent present although sessions can be carried out separately if that is needed in a process called ‘shuttle mediation‘. This is where you are each in separate rooms and the mediator ‘shuttles’ back and forth between you.
The mediator will remain impartial and won’t judge you or tell you what you think is right or wrong but you can expect them to sow seeds or challenge your views, beliefs and assumptions to explore where there might be common ground between you and the other party and to narrow the issues down to those in dispute.
They may ask you to answer questions from your child’s perspective and to focus on their needs rather than your own.
They will steer the conversation away from things that have happened in the past between you and your ex and focus on the future. They will subtly divert or refocus any conversations that sound like point scoring, attributing blame or discussion about who was right or wrong in the relationship.
If the mediation process goes well you may end up with some form of a mediation agreement or a Memorandum of Understanding.
Mediation Agreements and Memorandums of Understanding
If you are able to agree on an outcome following your family court mediation sessions your mediator may put this together for you (for a charge) in a mediation agreement or a ‘memorandum of understanding’.
It is important to understand that any agreement resulting from mediation is without any legal effect. Nothing agreed in mediation is enforceable or binding. It is hoped that you both reach and agreement that is in the best interests of your child and so you will both want to follow it.
You can’t force the other person to stick to what you have agreed and you can’t do anything about it if they don’t. Successful mediation will have resulted in an outcome where everyone gets what they want but more important is that there is an outcome that results in the best situation for your child.
Parenting plans and mediation agreements will allow you to include decisions about things that the court won’t be able to help you with, such as child maintenance payments or child support. Your mediator is obliged to advise you to seek professional legal advice on any agreement before you sign it.
If everyone is happy with the agreement you can end the process there and go on with your life sticking to that agreement.
You can return to mediation if you want to discuss making changes to it as your child grows up if you remain unable to communicate well with your ex.
Alternatively, you can still go to court and use the agreement from mediation as the starting point for a court order by consent which will make your agreement enforceable.
If you have developed a parenting plan or mediation agreement and you later need to apply for a court order you can attach that parenting plan to your application so the judge will be able to see what was previously agreed between you as being the best thing for your children.
If you have reached an agreement in mediation and would like to dicuss how to turn that agreement into an enforceable court order you should get in touch.
How much does family mediation cost?
Neither the MIAM nor any subsequent mediation sessions are free, there is a cost that needs to be covered by the parties. This varies between mediators.
Mediators are nothing to do with the courts and are private sector commercial businesses. The cost will vary depending upon the company you use, how many sessions you have and the complexity of the issues to resolve. MIAMs are typically a fixed cost and can vary between £30-120 pounds each with subsequent sessions being anywhere from £80-300 each per session per person.
There may also be additional costs, for example, if mediation does not work and you want your court order application certified by a mediator they may charge you for this and they may charge you to produce any resulting mediation agreement.
It is worth shopping around and looking at the different providers and speaking to them to understand their costs before you commit. For example, you may find that one mediator tries to draw you in by not charging for the MIAM itself but will charge you a great deal for signing off your application or to draft your mediation agreement whereas a mediator who charges slightly more for the MIAM might be cheaper overall when you consider the other costs.
So don’t just ask how much the MIAM is make sure you understand exactly what they charge for and how much before you commit so that you can compare the true costs. Most mediators will happily allow the costs for sessions to be shared equally between you and the other parties.
You can find mediators in your local area online by searching on the Family Mediation Council website (opens in a new tab).
How can I get help with family court mediation costs?
If you are on a low income, and are eligible, you may be able to cover the cost of mediation using legal aid.
Legal aid will cover the cost of both the MIAM and any subsequent mediation for both of you even if only one of you is eligible.
Legal aid will also cover the cost of getting legal advice on any mediation agreement before you sign it.
If either of you receives Universal Credit you may be able to fund all aspects of mediation for you both.
You may also be eligible for help under the Governments ‘Family Mediation Voucher Scheme’.
The family mediation voucher scheme is a time-sensitive mediation funding grant, intended to provide people who might be able to resolve things without needing to go to court.
The Government has set up the scheme in response to Covid-19 to support recovery in the family court and to encourage more people to consider mediation as a means of resolving their disputes, where appropriate. To support this, a financial contribution of up to £500 towards the costs of mediation will be provided, if eligible.