Do I have to try family mediation before I go to court? 

Clients often ask us “Do I have to try family mediation before I go to court?” Our view is that family court proceedings should always be viewed as a last resort and there are a range of different forms of “non-court dispute resolution” available to try as an alternative; mediation being one of those. 

Whilst mediation is a voluntary process and the court cannot compel a party to attend, there have been ongoing debates surrounding whether parties should have to attempt it before they are able to make an application to court. These debates have led to a recent change in the law that may impact you and your decision to make an application without first attempting to resolve your dispute via mediation.

Recent changes to the rules

The Family Procedure (amendment No2) Rules 2023 came into force in April 2024. These rules govern the procedure we must follow in the family courts of England and Wales.  

These changes, amongst other things, re-emphasised that court proceedings should be viewed as a last resort and that there is an expectation that parties will engage in non-court dispute resolution before making an application to court (where it is reasonable to do so). 

There are a few notable points to make about the recent changes that you may wish to consider. 

FM5 Court form

A party must now send to the court and all other party’s the new “FM5” court form when the court requires and this can be at numerous points throughout proceedings. This form requires parties to set out their views on using non-court dispute resolution as a means to resolving matters, explaining why it has not been successful or why they have not attempted it (FPR 3.3 (1A)). 

Power to adjourn 

The court now has the power to postpone proceedings to encourage parties to undertake non-court dispute resolution (FPR 3.4(1A))

Cost orders

A ‘cost order’ is an order requiring one party to pay all or some of the costs of another party. The court have the power to make such an order against any party in the proceedings. 

The court must now have regard to any failure by a party, without good reason, to attend a mediation information and assessment meeting (the initial mediation meeting) or another form of non-court dispute resolution when deciding whether to make a cost order (FPR 28.3).  

In financial remedy proceedings, each party is usually responsible for their own costs. However, if a court is of the view that a party has failed to reasonably attempt or engage in non-court dispute resolution they may impose a costs order against them, potentially running into tens of thousands of pounds. 

In children proceedings, the court is able to make a costs order “as it thinks just” and key considerations for the court include the conduct of the parties before and during the proceedings, and the manner in which a party has pursued or defended their case or a particular issue/allegation. 

Important considerations

Due to the recent changes and the possible consequences if you do not comply with the rules, whilst it is not compulsory, it is really important that you consider attempting mediation or another form of non-court dispute resolution before making an application to the family court. 

Find out more about mediation, watch informative videos and read further blogs – Family mediation

How can Moore Barlow help

If you would like to find out more about family mediation or book an initial MIAM meeting, our team of experienced family mediators are here to help. Visit our mediation page to learn more about our mediation services and book a meeting with one of our mediators.