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Book a MIAM →How Courts View Refusal to Mediate
Refusing mediation is not a neutral act. Courts in England and Wales increasingly expect parties to have genuinely attempted dispute resolution — and those who refuse without good reason face real consequences.
Whatever the other person does, attending your own MIAM demonstrates good faith. Courts can see from the FM1 certificate that you engaged with the process — and that the other person did or did not. Your conduct is your strongest asset in proceedings.
Key points
- Courts expect parties to have genuinely considered mediation before litigating — and take non-engagement seriously.
- Unreasonable refusal to mediate can result in adverse costs orders against the refusing party.
- This applies even if the refusing party wins on the main issue of the case.
- Judges can adjourn proceedings and direct parties to attempt mediation before continuing.
- The 'reasonableness' of refusal is assessed on the specific facts — not all refusals are treated equally.
- Domestic abuse, genuine safety concerns, and past failed attempts are among the circumstances courts accept as justifying refusal.
The Legal Framework — Why Courts Care
Family courts in England and Wales operate under a framework that actively promotes non-court dispute resolution. Practice Direction 3A, the Family Procedure Rules 2010, and successive judicial guidance all reflect a strong policy preference for mediation and other alternatives to litigation.
Judges are required to consider at every stage whether non-court dispute resolution is appropriate. Some courts operate a gatekeeping process specifically designed to check MIAM compliance before proceedings are allowed to proceed. Courts can also raise the issue of mediation at any hearing — not only at the outset.
The legal basis for penalising a party who unreasonably refuses to mediate sits within the court's broad discretion on costs. Under the Family Procedure Rules, the court can make any costs order it considers just — and unreasonable conduct in connection with mediation is explicitly a relevant consideration.
Legal reference: Family Procedure Rules 2010, Rule 28.3 (costs) and Practice Direction 28A. Practice Direction 3A (MIAM requirements). Ministry of Justice guidance on non-court dispute resolution in family proceedings.
What Adverse Costs Orders Actually Mean
An adverse costs order requires the party against whom it is made to pay a proportion — or all — of the other party's legal costs. In contested family proceedings, legal costs regularly run to tens of thousands of pounds per party. An adverse costs order is therefore not a nominal sanction.
Courts can make a costs order at any stage — at an interim hearing, at a final hearing, or after the conclusion of proceedings. A judge who considers that a party's refusal to mediate has prolonged or complicated the proceedings unreasonably may make a costs order that would not otherwise have been made.
Example: A father refuses to engage with the MIAM process without any valid reason, forcing a contested child arrangements hearing. The mother's legal costs are £18,000. The judge orders the father to pay 60% of her costs — a direct financial consequence of his refusal to attempt dispute resolution.
Note: Costs orders in family proceedings are not automatic and depend on the specific facts. But the risk is real — and advisers regularly warn clients that unreasonable refusal creates significant financial exposure.
What Counts as Unreasonable Refusal?
The court assesses reasonableness on the facts of each case. There is no fixed definition, but the following have generally been accepted as making refusal unreasonable: a bare refusal with no explanation given; claiming to be too busy or too stressed without any supporting evidence; asserting that mediation cannot work without having tried it; strategic delay — using non-engagement to slow down proceedings.
By contrast, the following are generally accepted as reasonable justifications: evidence of domestic abuse, coercive control, or a genuine safety risk; a significant power imbalance that would make fair negotiation impossible; a previous mediation attempt that broke down without agreement; the issues in dispute are so complex or specialist that mediation is genuinely not appropriate.
Key distinction: Unreasonable = a tactical or bare refusal. Justified = a specific, evidenced reason connected to safety, suitability, or previous failed attempts.
Can Courts Order Mediation?
Courts cannot order parties to participate in mediation itself. The voluntary nature of mediation means a court cannot compel two people to negotiate. What courts can do is:
Require attendance at a MIAM before proceedings continue — directing a party to book and attend an individual MIAM as a condition of further case management. Adjourn proceedings and make further hearing dates conditional on the parties having attempted mediation. Make costs orders that incentivise future cooperation with dispute resolution.
In practice, a firm direction from a judge that the case will not progress until mediation has been attempted is often enough to prompt the refusing party to reconsider. The financial and delay consequences of continued refusal concentrate minds.
Related Questions
Can refusing mediation affect who gets custody?
Not directly — courts base child arrangements on the best interests of the child, not on mediation participation. However, unreasonable refusal to engage with mediation is a conduct factor the court may weigh, and it can influence costs orders. It rarely determines outcomes on its own.
Will a judge penalise you for not attending mediation?
A judge cannot penalise you for the MIAM exemption route if genuinely used. But if you unreasonably refused to attempt mediation without a valid reason, the court may make an adverse costs order against you. Judges expect parties to have genuinely considered non-court dispute resolution before litigating.
Next Steps: Your Conduct Is on the Record
Attending your MIAM — even when the other person refuses — is the strongest demonstration of good faith you can provide. The FM1 certificate records who attended and who did not. Courts can see this.
If you are considering refusing mediation because of safety concerns, speak to a solicitor first. The difference between a justified refusal that the court accepts and an unreasonable one that costs you money can come down to how the refusal is framed and evidenced.
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