Can the court make me mediate?

March 19, 2024

People often ask whether mediation is compulsory. The short answer is no, mediation is a voluntary process. However the courts are increasingly expecting people to try and mediate. This has been emphasised in changes to the court rules, and recent case law. If you don’t mediate, the court can might adjourn proceedings to encourage you to mediate; and they can make costs orders against you if you fail to co-operate.

Mediation involves you and your ex meeting with an independent mediator who helps you reach your own agreement (usually about arrangements for children and/or a financial settlement).

Last year the Court of Appeal made a decision in a civil case, which can be applied to family court cases. In Churchill v Merthyr Tydfil County Borough Council and Others [2023] EWCA Civ 1416 the Court of Appeal determined the court have the power to compel parties in civil proceedings to engage in dispute resolution processes like mediation. The family courts have confirmed this principle applies to family cases as well in Re X 2024 EWHC 538.

Perhaps more significantly, the rules about family court cases are changing in April. The Family Procedure Rules 2010 are being amended with the inclusion of a new provision Rule 3.4 (1A) which allows the court to encourage mediation.

All of this shows the general direction of travel is that mediation is being pushed by the courts. There is no point going through the expense and delay of court proceedings only for the court to adjourn the case because people haven’t tried mediation properly.

At bbl we have 4 mediators, who are also solicitors. That makes us very aware of both processes and we can help guide you to find the best option for you.