When Mediation Is Required Before Court Proceedings

In England and Wales, mediation and alternative dispute resolution (ADR) are increasingly integral to the justice system. Before bringing certain disputes to court, individuals are often required to consider mediation or attend an early mediation assessment. This article explores when mediation is required before court proceedings, the legal frameworks involved, exemptions, how the process works, and practical implications for families and civil litigants.

Introduction

People sometimes turn to the courts to resolve disputes involving family arrangements, finances, property and civil claims. However, the law and court procedures increasingly expect parties to explore non‑court dispute resolution first, particularly mediation. In many contexts, mediation or an initial mediation assessment meeting is a precondition to issuing proceedings, unless specified exemptions apply. Understanding these requirements is essential to navigating the legal process effectively and avoiding procedural delays or adverse cost consequences.

Legal Framework: Mediation Requirements

Family Law: MIAM Requirement

Under Section 10(1) of the Children and Families Act 2014 and the Family Procedure Rules (Part 3), individuals who wish to apply to the family court for most private law matters must generally attend a Mediation Information and Assessment Meeting (MIAM) before filing their application. This requirement applies to disputes about child arrangements and many financial remedy cases arising from separation or divorce.

A MIAM is not the same as full mediation. It is an initial meeting with a qualified mediator designed to inform parties about mediation and other alternatives to court, and to assess whether mediation is suitable in their case.

Courts will normally expect a MIAM certificate confirming attendance or a valid exemption to be filed with the application form (for example, C100 for child arrangements or Form A for financial remedy proceedings).

Other Courts and Civil Claims

Outside family law, the Civil Procedure Rules (CPR) encourage parties to engage in pre‑action protocols and ADR such as mediation for civil disputes. While this is ordinarily not compulsory, it is strongly encouraged and factored into case management decisions, including cost awards.

A specific scheme was introduced in May 2024 for small claims valued up to £10,000: under Practice Direction 51ZE, parties are referred to mandatory mediation (often a one‑hour session) before the claim proceeds to a hearing, unless there is a valid reason not to mediate.

When Mediation (or a MIAM) Is Required Before Court

Family Court Cases

A person usually must attend a MIAM before applying to the family court in the following circumstances, unless exempt:

• Child arrangements disputes (living, contact and parental responsibilities)
• Financial remedy or property adjustment cases following separation or divorce
• Other private family law applications where the court rules specify a MIAM requirement.

The MIAM requirement is intended to ensure that parties have considered mediation before resorting to litigation, thereby promoting early and less adversarial dispute resolution.

Civil Claims in County Court

In most civil cases, there is no statutory requirement to attend mediation before issuing a claim. However:

• Pre‑action protocols within the CPR encourage parties to attempt ADR before issuing proceedings; failure to engage without good reason may be reflected in cost decisions later in the case.
• A dedicated pilot scheme for small claims now requires mediation in specified money claims under £10,000 before the case progresses to a hearing unless a valid reason not to attend is established.

Exemptions from the MIAM Requirement

Certain situations allow individuals to proceed to court without attending a MIAM:

• Domestic abuse or safeguarding concerns: where there is risk to the safety of any party or child.
• Urgent court applications: where immediate judicial intervention is necessary to protect welfare.
• Previous mediation or ADR: if a party has attended a MIAM or another form of dispute resolution within four months prior to the application.
• Disability or incapacity: where a party cannot reasonably attend a MIAM.
• Unavailability of mediators: where accredited mediators are not reasonably accessible within a defined timeframe or location.
• Other exceptional circumstances recognised by the Family Procedure Rules.

If a MIAM exemption is claimed, applicants must provide the necessary information to the court when filing their application; the court has power to review and determine whether the exemption is valid.

How the Requirement Operates in Practice

MIAM Certificates

After attending a MIAM, the mediator issues a MIAM certificate, which the prospective applicant must file with the court. This document shows whether:

• mediation was explored
• mediation is unsuitable for the case
• a valid exemption applies.

Without a valid MIAM certificate or exemption, the court may delay or refuse to proceed with the application until compliance is demonstrated.

Court Discretion and Non‑Court Dispute Resolution

Even after proceedings have begun, the court now has broader powers under the Family Procedure Rules to encourage or direct parties to engage in non‑court dispute resolution, including mediation or other ADR options, and can adjourn cases for this purpose.

Parties' conduct in attempting mediation or other ADR may also be considered in cost orders at the conclusion of proceedings.

Practical Implications for Parties

Early Engagement

Engaging with mediation or MIAM early can help:

• clarify issues and narrow disputes
• reduce legal costs and court delays
• promote solutions tailored to the parties' circumstances.

Courts increasingly encourage such early dispute resolution where safe and appropriate.

When Mediation May Not Be Suitable

There are legitimate cases where mediation is inappropriate, such as:

• established patterns of coercive control or abuse
• urgent safety issues for children or adults
• situations where one party is unable to participate meaningfully.

In such cases, parties may proceed directly to court with a valid MIAM exemption.

Civil Cases and ADR

For civil disputes, although mediation is rarely mandatory outside the small claims pilot, parties should consider ADR seriously. Courts view genuine attempts at resolution positively and may penalise obstinacy where ADR was reasonably available but not engaged.

Common Questions

Is mediation itself compulsory before court?
No. Mediation is not automatically compulsory. However, individuals are usually required to attend a MIAM to consider mediation before applying to family court, and small claims cases may be referred to mandatory mediation.

What happens if I skip mediation or a MIAM?
In family court cases, failure to attend a MIAM or claim a valid exemption can delay or prevent a court application. In civil claims, skipping ADR may affect cost awards.

Does attending a MIAM guarantee mediation?
No. The MIAM determines whether mediation is suitable. If the mediator or parties decide mediation is inappropriate, a certificate can still permit the court application.

Key Takeaways

In England and Wales, mediation and early dispute resolution play a significant role in both family and civil justice. Family law requires most applicants to attend a Mediation Information and Assessment Meeting (MIAM) before making a court application, unless specific exemptions apply. In certain civil claims, notably small claims under £10,000, mediation has become a mandatory step before a court hearing. Courts encourage mediation and ADR to reduce delay, cost and conflict, and individuals should consider these processes seriously. Parties must comply with procedural requirements, including MIAM certificates, to avoid delays in their cases and should be aware of valid exemptions in their circumstances.