If you are going through a divorce or separation and you cannot agree with your spouse or partner over financial issues or arrangements for your children, mediation is usually the first step. But what if your ex refuses to attend.
The courts much prefer couples to make their own arrangements in divorce / Separation. If they are unable to find an acceptable solution, then by law you are usually required to consider family mediation before litigation is permitted. The advantage of this is that a neutral mediator will work with you both to help you both agree on issues, rather than having them imposed upon you by the court.
Mediation Information Assessment Meetings
While attendance at mediation is voluntary, it is generally compulsory to at least consider mediation before you can go to court. This is done by way of a Mediation Information Assessment Meeting, or MIAM. The mediator will explain the process to you and consider whether mediation is suitable for your situation. There are a number of exemptions from the requirement to attend a MIAM, including:
• Where there is an investigation into possible domestic violence. • Where there are child protection concerns. • Where one party is not contactable. • Where one party does not live in England or Wales. • Where one party is in prison. • Where there are no available mediators within a 15-mile radius and within 15 working days.
Issues that can be dealt with in mediation
It is open to you and your Ex to deal with any matters relating to finances or your children during a mediation session. Common points of discussion include:
• With whom children will live. • How much time they will spend with the other parent? • How they will stay in touch with their parents during the time they are not together. • Who else they will see or won’t see. • How much will be paid by way of child maintenance. • Who will pay for the children’s other expenses, such as uniforms, extra-curricular activities and trips. • What will happen to the family home? • How other assets will be divided.
How will failure to attend mediation be dealt with
The courts consider mediation to be largely beneficial and helpful to families in putting together workable and fair arrangements for the future. The Government and research all supports this is a better way so much so the Ministry of Justice have now introduced the Family Mediation Scheme whereby they will contribute up to £500 towards mediation costs. This often means if one party is eligible for legal aid then the costs of the mediation process may be funded in full. This helps to put a stop to affordability being an obstacle to the process.
If your spouse or partner refuses to attend, the judge could consider that this was not helpful to the process and was not a reasonable attempt to put the children’s best interests first. They can also direct that mediation takes place if deemed appropriate at that stage.
In looking at who will pay legal costs, the court can take into account the conduct of the parties, before, during and after proceedings. It is possible that a failure to cooperate by attending mediation could be construed as negative conduct.
In any event, if mediation is not attempted, it could well take longer to settle issues relating to finances and children. The court would generally need to have the family situation assessed before reaching a decision as to arrangements for children and dealing with financial issues is also likely to take a lengthy period of time if it is litigated.
If you are able to meet with a mediator at a MIAMs meeting to understand more about the process yourself this often helps to “ sell “ the benefits of the process to your ex for them to engage once the mediator sends them a formal invite themselves.
If you would like to speak to one of our family mediators , ring us on 0151 832 32 53 or email us at firstname.lastname@example.org or schedule a telephone consultation here:-
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