Refuse to mediate at your peril! (and cost)

Refusing to try to use mediation to resolve divorce disputes relating to children or finances can have severe consequences, including being ordered to pay your partner’s legal fees.

Much has been written about the family courts’ shift to promoting the use of mediation to settle cases.

Judges have an obligation to ensure cases are dealt with “Expeditiously and fairly” and in ways that “Save expense. “(Family Procedure Rules 2010 part 1.2(2)(a) and (d).

This explicitly includes “Encouraging the parties to use an alternative dispute resolution procedure [such as mediation] if the court considers that appropriate” – see part 1.4(2)(e).

Although mediation is voluntary it seems clear that not complying with a Judge’s recommendation to use it can have repercussions.

In the case of H v W [2013] EWHC 4105 (Fam) the initial decision of the court was appealed. 

The husband had been ordered to pay 25% of his annual bonus to his wife.  He disagreed and believed that there should have been a cap placed on that payment.  In other words he believed that he should pay 25% of his bonus, or a fixed, upper limit, whichever was the lower.

At the time of applying for permission to appeal the decision, the court made it clear that they were inclined to agree that there should be a cap on the maintenance to be paid.  Having given such an indication that this was the likely outcome the court then encouraged the husband and wife to use mediation to reach an agreement, in keeping with the court’s powers detailed above.

Mediation did not happen and the blame for that was placed at the feet of the wife.

At the subsequent appeal the husband was successful in having a cap placed on the maintenance he had to pay from his bonus payments. Incidentally, that cap was set at £20,000 per annum in addition to the £3750 he was to pay to his wife each month.

In the subsequent discussions about who should pay the costs of the appeal – which totalled nearly £48,000 – the court ordered that the wife’s position with regard to mediation had been unreasonable.  Her insistence on using a `Top drawer and top price’ mediator combined with an insistence that her legal representatives should be allowed to accompany her within the mediation sessions was found to be obstructive and unreasonable.

As a result the court took a very firm stance and ordered that the wife should pay the husband’s costs of the appeal.

The lesson is clear.

Although mediation is a voluntary process, if you are encouraged to attempt to use it then you are well advised to do so and to do so in good faith.  If you attempt to scupper the encouragement of the court by attaching conditions and adopting an overly dogmatic approach to how mediation will be conducted then there is every risk that the court will interpret this as wilful obstruction.  The penalties can be very expensive as seen in this case.

Click here to read the judgment setting out the penalties for not using mediation.