Do I have to mediate before I go to Court?
Mediation is a voluntary process, so you’re under no obligation to mediate before making an application to Court.
But there IS a requirement that, before making an application to Court in respect of finances or children (unless any of the exemptions apply), you attend an intake session or MIAM (a Mediation Information and Assessment Meeting). At this meeting you will be told about the available process options, and will have an opportunity to ask questions about them. If you are interested in mediation, you and the mediator will discuss your circumstances in more detail so as to make sure that mediation is an appropriate choice for you.
Do I have to persuade the mediator that I should be ‘allowed’ to make a Court application?
No. The choice of which process to use is yours. There is no test to pass. You will discuss with the mediator the different processes available and then make your own decision about which best suits you and your circumstances. Many people also want to have a chat with their solicitor before making a final decision.
If I don’t want to mediate, and proceed straight to making an application to Court, will my not wanting to mediate count against me?
No. People often worry about this, but Judges are well aware that there are many reasons why mediation may not be the appropriate process for you and your circumstances. The only thing you have to have done is the MIAM.
We aren’t talking at the moment, so how could we possibly mediate?
Most people attend mediation because they are struggling, at that point, to have constructive discussions between themselves. The job of the mediator is to facilitate discussions and to help you focus on the issues that you want to resolve; to assist you to listen to each other’s views; and to help you develop a better working relationship and reach decisions about financial matters or child arrangements. It’s completely normal to find the mediation process daunting to begin with but most people eventually feel that it has been more helpful to meet in that arena rather than at Court. If talking proves really difficult, though, there’s the option of “shuttle” mediation, where you both remain in separate rooms and don’t have to talk directly to each other.
If one of us makes an application to Court, could we still mediate?
For mediation to happen, you both have to agree to it. So it might be that if one person has made an application to Court it is because they do not want to mediate at all. That being said, even after proceedings are issued, people can choose to attend mediation, and you can ask the Court to adjourn the next hearing to allow such discussions to take place. Some people who have been through the Court process and have a Child Arrangements Order still choose to attend mediation to iron out any disagreements about how the Order should be interpreted, or to make changes as the children grow older