What happens if one party does not attend mediation?

Mediation is designed to bring disputing individuals together, with the aim of reaching an agreement. With the help of a professional mediator, individuals explore the different options available to them, discussing different avenues that may result in a consensus.

As a collaborative process, it relies on both parties being present and engaged. So, what happens if one party does not attend mediation?

There are a number of implications to consider in cases where one party does not attend, and the consequences can differ depending on whether the individual is absent for the Mediation Information and Assessment Meeting (MIAM), or for the mediation sessions themselves.

In this guide, we’ll cover what happens if one party does not attend mediation, and the potential implication to consider.

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What happens in mediation?

Family mediation is a process in which a third party, called a mediator, facilitates communication and negotiation between participants with the aim of resolving disputes and making plans. Common issues covered in mediation include child arrangement, property division, and financial support.

The mediator does not make decisions for the parties, but rather helps them identify their goals, interests, and concerns and explore options for resolving the dispute. The goal of family mediation is to help the parties reach mutually acceptable outcomes without the need to go to court.

Amongst many benefits of mediation, the process is often faster, less expensive, and less adversarial than traditional litigation.

Do I have to attend mediation?

Attendance at mediation is voluntary, meaning you do not have to attend mediation if you do not want to. However, it’s important to clarify the distinction between the requirement to attend a Mediation Information and Assessment Meeting (MIAM) and the requirement to attend mediation.

When you are intending to make an application to court in certain types of legal proceedings, such as family law cases involving children, the family court requires you to attend a Mediation Information and Assessment Meeting (MIAM) before starting court proceedings, unless a MIAM exemption applies. The MIAM is an opportunity for people to find out more about mediation and other dispute resolution options before making an application to court. This is to prove to the judge that you have met with a mediator first and explored alternative options before applying to the court.

Mediation sessions following the MIAM are voluntary, and you do not have to continue with the process after this point. No-one (neither the mediator, court, or other party) can compel you to attend. When deciding whether to continue with mediation, it’s important to consider whether the process and its many benefits could help you resolve your dispute and move forward with life.

What happens if I don’t attend the MIAM?

If you have not attended a MIAM (either because you have claimed a relevant exemption or because you are not the one to have made the application to court), a judge can direct that you have to attend a MIAM and adjourn proceedings to allow time for mediation to take place.

In certain cases, at the conclusion of proceedings, a judge may determine that a person's failure to attend a MIAM was not reasonable and can order that party to make a contribution towards the other person’s legal costs.

Do I need to respond to an invitation to mediate?

You are not obligated to respond to an invitation to mediate, and this is not a legal requirement. However, it is important to consider whether mediation may be useful for you, and whether the process may help resolve your dispute before deciding whether to participate.

It’s also important to note that if your case goes to court, you will generally be expected to explain why you declined the option to mediate to the judge.

Will it be held against me if I do not attend mediation?

Mediation is a voluntary process, and nobody will make you attend against your wishes. If you or the other party do not attend, then it is likely that the court will question why you didn’t attend during proceedings. This is because, in children and financial casesfinancial cases, there is an expectation by the courts that you and the other party will have explored the option of mediation before applying to court.

In determining whether the decision not to attend will be held against you, again, it’s important to distinguish the different implications between deciding not to attend a MIAM, and deciding not to participate in the mediation process:

  • MIAM attendance is a legal requirement
  • Mediation attendance is not a legal requirement

The decision not to attend a MIAM before making an application to the court will likely have implications on how the judge evaluates your case. That is, unless there is a reasonable exemption to attending the MIAM.

For example, in financial court cases, judges are now making more orders whereby if someone does not attend a MIAM, they may have to pay some, or all, of the other party's legal costs. As a result, not attending the MIAM can and does get held against you if there's no good reason to not attend.

What are the exemptions to attending a MIAM?

There are several circumstances whereby you may be exempt from attending a MIAM. Exemption can apply to cases where:

  • Domestic abuse is involved
  • There are no available mediators within 15 miles
  • The hearing is urgently required
  • Both parties live abroad
  • There is a linked case that is currently ongoing
  • There are concerns of child safety

I am interested in mediation, but I do not want to see my ex again

It is understandable that the thought of facing your ex during the mediation process can be difficult, especially if you have unresolved feelings or the relationship ended on bad terms. However, it is important to consider that mediation is a process designed to help parties reach a resolution and move forward.

It is possible to conduct mediation sessions through remote means, such as video conferencing, which would allow you to communicate with your ex without meeting them in person. This is an option that we offer here at Mediation First, with a dedicated online mediation service. There is also the option of mediating in separate spaces (commonly known as ‘shuttle mediation’) whereby you do not have to see or speak with your ex directly and communication is conducted via the mediator.

Additionally, you may be able to have a support person with you during the mediation sessions, such as a friend or family member, or a professional counsellor, to provide you with emotional support and help you stay focused on your goals for the mediation.

It’s also important to remember that you can always opt out of the process if you feel that it is not working for you. It is always best to discuss your concerns with the mediator to understand the options available to you and make sure that you are as comfortable as possible.

Can the court tell us to go back to mediation?

The Children Act 1989 states that “No individual may be required by an activity direction to take part in mediation”. This means that, legally, a judge cannot direct you or the other party to attend mediation. Although, it’s important to note that the judge will likely ask why you chose to decline mediation.

The judge can, however, direct parties to attend a MIAM.

How mediation can help you

If you or the other party are unsure whether mediation could be helpful for you, speaking to a mediator will help you understand more about your options, and whether or not mediation may be applicable to your situation.

Mediation can help you resolve issues relating to family matters, divorce and separation, and can also be used to help reach an agreement on workplace, civil and commercial matters.

Family mediation is commonly used to help divorcing parties agree on financial agreements, parenting plans, property agreements, grandparents’ rights, and many other areas.

Move forward with mediation. Start by getting in touch with us at:

Tel: 0330 320 7600
Email: office@mediationfirst.co.uk.

Or, via our online contact form.