Is Family Mediation compulsory?

I saw a question on an online forum recently which asked whether or not divorce mediation was compulsory.

In very general terms, mediation is not compulsory in family law matters and is certainly not compulsory in divorce. Anybody can divorce, as long as they have been married for one year and a day, and they can prove that the marriage has broken down irretrievably.

Similarly, marriage counselling is not compulsory on divorce and family mediation is not counselling.

Some of the confusion appears to have arisen since the change in the law on 22nd April with the introduction of the Children and Families Act 2014.

Section 10(1) of the act provides that before making a relevant family application, a person must attend a Family Mediation Information and Assessment Meeting.

Some media reaction following this change rather confusingly reported this to mean that everybody going through a divorce had to go to mediation first. This is definitely not the case and, in fact, mediation is only relevant where there is an element of disagreement in family cases. Many people settle their cases without the aid of mediators and sometimes even without the assistance of solicitors.

The Act means that you need to attend a Mediation Information and Assessment Meeting (MIAM) before you make an application to court on any family related issue. This includes applications relating to children and finances on separation, divorce or dissolution of civil partnerships. To cause further confusion you are not actually compelled to mediate (because the mediation meetings between two people remains a voluntary process), only to attend the assessment meeting.

A MIAM is where you will meet with a mediator to discuss the process of mediation and how it might help in your own circumstances, which will allow you to make an informed decision about whether or not you wish to mediate your disagreement, or proceed with a court application where a judge might make an order.

Interestingly, the person who would be the Respondent to any application does not have to attend a MIAM; although the Act does allow a judge to make an order in the court application for either person to attend such a meeting before the case goes any further.

There are a number of exemptions to the requirement to attend a MIAM, which include instances where there has been domestic violence which has been reported and prosecuted; involvement of the social services regarding the welfare of a child; urgency and threats of the removal of a child from the country.

In summary, the requirements regarding mediation and whether it is relevant and/or necessary in your case are quite complicated. It is wise to be cautious because court staff have now been directed to refuse applications where evidence of attendance at a MIAM and/or an exemption do not accompany the court application. This could mean a wasted trip to the court and further delay.

At Emsleys, we have a team of family solicitors who can advise you whether or not you should be thinking about mediation before making an application to the court.

For more information, please call our Family Law team on 0113 201 4900 or email family.law@emsleys.co.uk.

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