Do I have to use mediation ?

Do I have to go to mediation ?

Family mediation has become increasingly common over recent years, coinciding with the courts becoming more and more under pressure.

At least once a week, during my pre-mediation meetings with clients, I am asked one or more of the following questions buy clients:

  • Do I have to mediate ?
  • What if I don’t go to mediation ?
  • Can my former partner do anything about this ?
  • What if my former partner refuses to mediate ?
  • Can I do anything about this ?
  • Can the court do anything about this ?

The answer to all these questions is, of course:

It depends- It depends on a whole range of considerations

However, what if, having seen both clients, a mediator considers that with proper preparation and support, mediation is very suitable and stands a good chance of success BUT one of the couple is taking a very intransigent, adversarial approach and refuses to come to mediation?

 

What can the court do about this ?

In a recent Court of Appeal case (Carr LCJ, Vos MR, Birss LJ) handed down judgment in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 (‘Churchill’) concluding

  • Having reviewed international (ECtHR and CJEU) and domestic cases on the constitutional right of access to the court, the power does exist to stay proceedings for or order the parties to attend in a non-court-based dispute resolution process.
  • However, that power must be exercised in such a way that does not impair a claimant’s article 6 right, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.
  • However, Vos MR declines to lay down fixed principles as to what will be relevant in determining the question of any stay, although setting out between [61]–[63] (see below) factors that might be relevant. And:
  • Vos MR concludes by singing the praises of NCDR:
  • ‘Even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court-based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method … is a matter of the court’s discretion, to which many factors will be relevant’; [59].

 

Considerations

So, what is a court likely to consider in deciding how to deal with someone who is refusing to come to mediation.

The Judge referred to the factors put forward by the Bar Council noting that these factors mirror, to some extent at least, the factors discussed by the Court of Appeal in Halsey at [16]-[35] as being relevant to the costs question of whether a party had behaved unreasonably in refusing ADR.

(i) the form of non-court based dispute resolution being considered,
(ii) whether the parties were legally advised or represented,
(iii) whether non-court based process was likely to be effective or appropriate without such advice or representation, (iv) whether it was made clear to the parties that, if they did not settle, they were free to pursue their claim or defence,
(v) the urgency of the case and the reasonableness of the delay caused by non-court based process , (vi) whether that delay would vitiate the claim or give rise to or exacerbate any limitation issue,
(vii) the costs of non-court based process , both in absolute terms, and relative to the parties’ resources and the value of the claim, (viii) whether there was any realistic prospect of the claim being resolved through non-court based process ,
(ix) whether there was a significant imbalance in the parties’ levels of resource, bargaining power, or sophistication,
(x) the reasons given by a party for not wishing to mediate: for Page 27 Judgment Approved by the Court for handing down. Churchill v. Merthyr Tydfil example, if there had already been a recent unsuccessful attempt at non-court based process, and
(xi) the reasonableness and proportionality of the sanction, in the event that a party declined ADR in the face of an order of the Court. 62. 63. 64.
I would say to those people taking a very rigid and intransigent position in refusing to mediate:
BEWARE !
Whatever I, as a Mediator (and former solicitor) may think about this, the Judge has the power to put the court proceedings on hold (Stay proceedings), directing you to attend mediation and, if necessary make a cost order against you. There are precedents for this.

Recommendation

My recommendation is to do you best to keep an open mind and take a ‘business like’ approach to resolving matters with your former partner, when your marriage comes to an end, managing, if you can, the negative impact on you of how it all came about, engaging fully with the support your mediator (and others such as coaches) give you both, using the mediation structure and framework to reach your own agreements.
This can save you and your family a huge amount of further heartache, to say nothing of the professional fees.

 

Do I have to use mediation ?
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