Courts Penalising Parents Refusing Mediation: What London Families Need to Know

If you are involved in a family dispute in London and someone has told you that you can just go straight to court and skip mediation, it is worth pausing before you take that step. Courts penalising parents refusing mediation is no longer a rare occurrence. It is becoming an established part of how London family judges manage cases, and the direction of travel is clear: judges expect parties to have genuinely engaged with alternatives to litigation before they arrive at a courtroom.

In this article, we look at how courts are using costs orders to discourage mediation refusal, which cases have shaped this approach, and what London families can do to protect themselves, and their finances, by engaging with family mediation in London before things reach a judge.

Why Courts Take Mediation Refusal Seriously

The family courts in England and Wales are under sustained pressure. Waiting times at London courts such as the Central Family Court in Holborn and the Family Court at Barnet can stretch to many months for a final hearing. Judges are acutely aware that litigation is expensive, adversarial, and often damaging to ongoing co-parenting relationships, particularly where children are involved.

The legal framework already signals that mediation should come first. Under the Children and Families Act 2014, most applicants are required to attend a Mediation Information and Assessment Meeting (MIAM) before they can issue certain family court applications. Practice Direction 3A of the Family Procedure Rules sets out the MIAM requirement in detail, including the limited exemptions that apply.

But the requirement to attend a MIAM is only part of the picture. Judges also have broad discretion under Rule 28 of the Family Procedure Rules when it comes to costs. And they are increasingly willing to use that discretion against parties who have refused reasonable invitations to mediate, whether before proceedings began or after.

Courts Penalising Parents Refusing Mediation: What the Case Law Shows

The principle that refusing mediation can lead to a costs penalty has roots in civil litigation, but family courts have moved steadily in the same direction. The landmark civil case of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 established that a winning party could be denied their costs, or even ordered to pay the other side’s, if they had unreasonably refused alternative dispute resolution. While family law costs rules differ in important respects, judges have drawn on this reasoning.

More recently, in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the Court of Appeal confirmed that courts can lawfully stay or adjourn proceedings to require parties to engage with alternative dispute resolution, going further than Halsey had suggested. Though this was a civil case, the implications for family proceedings are significant: courts have the power to compel engagement with non-court resolution processes, not merely to penalise refusal after the fact.

In family proceedings specifically, judges have made costs orders against parties who refused to engage with mediation where it would have been reasonable to do so. Common scenarios include cases where one parent point-blank refused a MIAM invitation, cases where mediation was ongoing and one party withdrew without good cause, and financial remedy cases where one party refused to consider a negotiated settlement despite clear pressure to do so.

The courts look at whether the refusal was reasonable in all the circumstances. Factors that weigh against a party include: refusing mediation without giving reasons, citing vague concerns about the other party without evidence, or simply preferring to litigate rather than negotiate.

What “Unreasonable Refusal” Looks Like in Practice

There are legitimate reasons why mediation may not be appropriate. Domestic abuse, safeguarding concerns, urgency, and situations where one party lacks the mental capacity to participate are all recognised exemptions. If any of these apply, a MIAM mediator will assess the position and, where appropriate, sign off a MIAM exemption so that the court application can proceed without mediation being attempted. You can find out more about these in our guide to MIAM exemptions.

What courts are increasingly unwilling to accept is a refusal that comes down to preference or stubbornness. If a party simply does not want to mediate because they believe they will win in court, or because they want to use litigation as a pressure tactic, a judge is unlikely to be sympathetic when it comes to costs.

Some of the behaviours that have attracted adverse costs orders in family cases include:

• Refusing a written invitation to mediate without providing reasons
• Ignoring repeated requests to attend a MIAM
• Attending a MIAM but refusing to proceed to mediation without a genuine reason
• Claiming mediation “wouldn’t work” without having tried it
• Withdrawing from mediation partway through without justification

The practical consequence is that a party who behaves in any of these ways may find themselves paying a significant portion of the other side’s legal costs, on top of their own. In London, where solicitor rates are among the highest in the country, this can amount to a very substantial sum.

A Growing Trend: Judges Flagging Mediation Refusal Early

One change that practitioners across London have noticed is that judges are now raising the issue of mediation engagement much earlier in proceedings, sometimes at the very first hearing. Rather than waiting until a final judgment to make a costs comment, judges are signalling to parties that their willingness, or unwillingness, to engage with mediation will be noted and may affect the costs decision at the end of the case.

This creates a practical incentive to engage genuinely, not just to attend a MIAM and declare mediation unsuitable. Courts are becoming more sophisticated in assessing whether engagement has been meaningful. Simply going through the motions to tick a box is unlikely to protect a party from a costs penalty if the overall picture suggests bad faith.

The Financial Case for Choosing Mediation in London

Setting aside the risk of a costs penalty entirely, the financial comparison between mediation and litigation is striking, particularly in a city where family law solicitors commonly charge £250 to £450 per hour.

A contested financial remedy case in the London courts frequently costs each party between £15,000 and £50,000 by the time of a final hearing, and can run considerably higher in complex cases involving property, businesses, or pensions. A child arrangements dispute taken to a final hearing can easily cost £10,000 to £20,000 per party.

By comparison, a full mediation process with London Mediation Service typically involves three to five sessions, with costs split between the parties. For many couples, the total outlay is a fraction of what litigation would cost, and the process can reach resolution in weeks rather than years. You can check current mediation fees on the Mediate UK costs and payments page.

There is also the Family Mediation Voucher Scheme to consider. Eligible families can receive up to £500 towards the cost of mediation. This is particularly helpful for disputes involving child arrangements, and our team can tell you whether you qualify when you book your MIAM in London.

How London Families Can Protect Themselves

Whether you are the person being asked to mediate or the person making the invitation, there are practical steps you can take to protect your position.

If you are inviting the other party to mediate

Make your invitation in writing. A solicitor’s letter or even a clear email is more useful than a verbal request, because it creates a paper trail that can be shown to a judge. Specify the type of mediation you are proposing, give a reasonable timeframe for a response, and keep a copy. If the other party refuses or ignores you, that correspondence will be relevant if costs come up.

If you are being invited to mediate

Do not simply say no without taking proper advice. Even if you have concerns about the process or the other party, attending a MIAM is not the same as agreeing to mediate. A MIAM in London is a confidential one-hour meeting with an accredited mediator where you can explore whether mediation is suitable for your situation. It costs relatively little and removes any argument that you refused to engage.

If, after attending a MIAM, you genuinely have reasons why mediation is not appropriate, the mediator will document this and provide the relevant form for your court application. Your position is protected.

If proceedings have already started

It is not too late to propose mediation once a case is underway. Courts look positively on parties who make genuine efforts to resolve matters at any stage. If both parties are open to it, a judge can adjourn proceedings to allow mediation to take place. This can save everyone, including the judge, significant time. Our London mediation services include options for families already partway through the court process.

Where to Go in London

London Mediation Service has office locations designed to be accessible from across the capital. Our Waterloo office is convenient for families in South Bank, Lambeth, Westminster, and surrounding areas. Our St Pancras office serves Camden, Islington, and North London clients. And our Sutton office covers South London. We also offer online mediation for families who prefer to meet remotely or who cannot easily travel.

All of our mediators are accredited members of the Family Mediation Council, which means they meet the professional standards required for MIAM completion forms to be accepted by the courts.

Frequently Asked Questions