What Happens If My Ex Refuses Mediation?

If you would like to try mediation but your former partner does not, it can feel as though you’ve hit a brick wall.

If you are wondering whether you can still have a MIAM, whether you have to persuade them to take part, or whether refusing mediation means that court is now your only option, this article will help you.

The important thing to know is that you are not stuck.

You can still speak to a mediator yourself, attend your own confidential Mediation Information and Assessment Meeting (MIAM), understand the options available to you and decide what you would like to do next.

Mediation is voluntary, so you cannot force somebody to take part or reach agreement. But one person being reluctant, uncertain or unwilling to mediate does not prevent the other person from getting information and support.

Can my ex be forced to mediate?

No. Mediation works best when both people are able to take part voluntarily and engage with the process.

A mediator cannot force somebody to mediate and cannot make either person agree to a particular outcome.

That does not mean that somebody has to feel enthusiastic about mediation from the outset. Separation can be an emotional and uncertain time, and it is quite common for one person to be more ready to consider mediation than the other.

Sometimes a person is reluctant because they are not really sure what mediation involves. They may worry that they will be pressured into agreeing something, that the mediator will take sides, or that mediation means having to give in.

A MIAM gives each person the opportunity to find out more about the process privately before deciding whether mediation may be appropriate.

Can I still have a MIAM if my ex refuses mediation?

Yes.

You attend a MIAM on your own, in confidence, with a mediator.

During your MIAM, you explain what is happening in your situation and what you are hoping to resolve. This might include arrangements for your children, your home, finances, pensions or other issues arising from separation.

Your mediator will explain how mediation works, discuss the different options available to you and consider whether mediation appears suitable in your circumstances.

If you attend a MIAM, this does not commit you to mediation.

It is an opportunity to understand your choices before deciding what happens next.

Do I have to persuade my ex to attend mediation?

No.

You do not need to convince the other person that mediation is a good idea before you contact a mediator.

In fact, trying to negotiate about mediation directly can sometimes create yet another source of disagreement.

You can make your own enquiry and arrange your own MIAM. If mediation appears potentially suitable, the mediator can then explain how the process may be offered to the other person.

It is important that each person has the opportunity to make their own decision about taking part.

Why might someone refuse mediation?

It can be easy to assume that somebody who says no to mediation is simply being uncooperative.

In reality, there can be many reasons why someone feels hesitant.

They may:

• not understand what mediation involves;
• believe that mediation means having to compromise on everything;
• worry that the mediator will favour the other person;
• feel angry, hurt or overwhelmed by the separation;
• think that going through solicitors or court will give them greater protection;
• not yet feel ready to discuss finances or arrangements for the children;
• have concerns about communication, conflict or safety;
• or simply need more information before deciding.

There are also circumstances where mediation may not be suitable, or may not be suitable at that particular time.

That is one of the reasons MIAMs are important.

The mediator’s role is not simply to encourage everyone into mediation. It is to consider carefully whether mediation is appropriate and, if so, what type of process may be suitable.

What if my ex attends a MIAM but then refuses mediation?

That can happen too.

Sometimes both people attend individual MIAMs and then decide not to mediate.

A MIAM is an information and assessment meeting. It gives each person the opportunity to speak privately with the mediator and decide whether they wish to consider mediation.

There may therefore be situations where both people attend individual MIAMs but mediation does not proceed.

That does not mean the meetings have been wasted.

Understanding your options, identifying the issues that need to be resolved and having the opportunity to consider different ways forward can still be valuable.

What if my ex simply ignores the mediation invitation?

Sometimes there is no definite refusal at all.

One person may simply not respond.

That can be frustrating, particularly if you are trying to move matters forward.

You are not expected to chase indefinitely.

If you have attended your own MIAM, the mediator can explain what happens if the other person does not respond and what options may then be available to you.

What happens next will depend on your individual circumstances and on the issues you are trying to resolve.

Does my ex refusing mediation mean we have to go to court?

Not necessarily.

Court is one way of resolving family disputes, but it is not the only possible route.

Depending on your circumstances, other options may include negotiating through solicitors, obtaining individual legal advice, returning to discussions at a later stage or considering another form of non-court dispute resolution.

In some situations, however, a court application may become necessary.

If you are considering making certain applications to the Family Court concerning children or finances, you will usually need to attend a MIAM first unless an exemption applies.  Read our article on ‘What Is a MIAM and Do I Really Need One Before Going to Court?’

Your mediator will explain the MIAM process and, where appropriate, provide the relevant mediator confirmation if mediation is not proceeding.

Will the court care if my ex refuses mediation?

The Family Court increasingly encourages people to consider ways of resolving disputes outside court where it is safe and appropriate to do so.

That does not mean that somebody will automatically be criticised or penalised simply because mediation did not take place.

There may be perfectly good reasons why mediation was not suitable.

However, the court can consider the parties’ approach to non-court dispute resolution in appropriate cases, so simply refusing to consider any alternative without good reason may sometimes be relevant.

If court proceedings are being considered, it is sensible to obtain independent legal advice about your particular circumstances.

What if we have already started court proceedings?

Starting court proceedings does not always mean that mediation is no longer possible.

Some separating couples return to mediation after proceedings have started because they would still prefer to reach their own arrangements rather than ask a judge to decide everything for them.

Whether that is appropriate will depend on the circumstances of the case and whether both people are willing and able to take part.

A mediator would still need to consider suitability carefully.

What if I don’t feel able to sit in the same meeting as my ex?

This is something you can discuss privately during your MIAM.

Your mediator will not simply try to persuade everyone to mediate.

Different mediators work in different ways, and different formats will be looked at depending on the circumstances.

Your MIAM is an opportunity to raise any concerns you have about communication, conflict, pressure or safety.

You should never feel that you have to agree to a process that does not feel appropriate for you.

What should I do if my ex refuses mediation?

If the other person tells you that they will not mediate, or simply will not engage with the suggestion, you do not have to solve the problem before contacting a mediator.

A sensible first step is often to arrange your own MIAM.

This allows you to:

• explain what is happening;
• find out how mediation works;
• discuss what you are hoping to resolve;
• consider whether mediation might be suitable;
• understand what happens if the other person does not take part; and
• look at the other options available to you.

You can then make a more informed decision about what you want to do next.

You can start with your own MIAM

When a relationship ends, it is difficult enough trying to work out what needs to happen without also feeling responsible for persuading the other person to cooperate.

You do not need to have everything worked out before seeking help.

A MIAM gives you a confidential space to talk through your circumstances, understand the different ways forward and consider what may be appropriate for you and your family.

At Divorce Nicely, all MIAMs take place online, so you can attend from somewhere private and comfortable without needing to travel.

If you would like to find out more, you can start by completing our short questionnaire to arrange your individual MIAM.

TO START THE PROCESS, PLEASE CLICK THE BUTTON BELOW TO COMPLETE YOUR QUESTIONNAIRE – WE WILL THEN CONTACT YOU.