It has been widely reported that parties in financial order (previously ancillary relief) cases are being compelled to mediate due to the recent reforms within the Family Procedure Rules 2010 which came into effect on the 6 April 2011. However, the position is that it is mandatory for the parties to consider whether mediation is appropriate in their circumstances but not necessarily mandatory to attend mediation.

There are many advantages of using mediation as a course of action as the impartial third party can assist those involved in a family breakdown to communicate better with one another and to help them to reach their own agreed and informed decisions about some or all of the issues relating to or arising from the separation or divorce. However, mediation is not suitable in all cases, and the best option will depend on individual circumstances. For some couples court is the right option, including when there is domestic abuse, intimidation or an imbalance of financial power. Mediation is a voluntary process and separating couples must both be willing to try it for it to have a chance of being successful.

The Court has therefore stated that there are a number of exemptions that means that a party would not be expected to attend mediation, namely:

1. That the mediator is satisfied that mediation is not suitable because another party to the dispute is unwilling to attend a Mediation Information and Assessment Meeting (MIAM) and consider mediation.
2. A mediator determines that the case is not suitable for a MIAM.
3. A mediator has made a determination within the previous four months that the case is not suitable for a MIAM or for mediation.
4. Domestic abuse has occurred within the last 12 months.
5. The dispute concerns financial issues and either party is bankrupt.
6. The parties are in agreement and there is no dispute to mediate.
7. The whereabouts of the other party are unknown.
8. The prospective application is for an order in relevant family proceedings which are already in existence and are continuing.
9. The prospective application is to be made without notice to the other party.
10. The prospective application is urgent because there is a risk to the life, liberty or physical safety of the applicant or his/her family or his/her home, or any delay caused by attending a MIAM would cause a risk of significant harm to a child, a significant risk of a miscarriage of justice, unreasonable hardship to the applicant or irretrievable problems in dealing with the dispute.
11. There is current social services involvement as a result of child protection concerns in respect of any child who would be the subject of the prospective application.
12. A child would be a party to the prospective application.
13. The application (or applicant’s legal representatives) contacts three mediators within 15 miles of the applicant’s home and none is able to conduct a MIAM within 15 working days of the date of the contact.

In summary, the process of mediation is beneficial to a number of divorcing couples and it has many advantages. On the other hand, mediation may not offer enough protection and structure for some couples. For example, a couple with domestic violence or substance abuse issues may need to have lawyers speak for them instead of trying to negotiate directly. In addition, some spouses may prefer to assume the risks and cost of adversarial litigation in order to make a point or assert a legal right rather than compromise in a settlement. The Court is aware of these issues which is why it has provided exemptions for individuals to rely upon if mediation is not suitable for them.