MIAM Exemptions

Is mediation compulsory in divorce UK?

Since 2014 it is a legal requirement to attend a MIAM Mediation Information and Assessment Meeting before making an application to the Court relating to a family dispute. This is to enable you to at least attempt mediation in the first instance. At your MIAM, your family mediator will provide you with information about mediation so that you can make an informed decision whether mediation is right for you. They will also assess your case for its suitability at mediation.

It is important that you are aware that mediation itself is not compulsory, it is only the MIAM. This is because the legal requirement is for you to at least consider family mediation before applying to the Court. Mediation is a voluntary process, meaning that you do not have to use it if you don’t want to. An application to Court however may result in a judge asking you why you did not use mediation and they can actually direct you back to mediation to try and resolve your dispute at mediation.

You need to attend a MIAM if you are experiencing either of the following family disputes:

1. Child arrangements – if you are trying to resolve issues relating to your children, such as where they live or who spends time with them.
2. Financial arrangements – if you are trying to resolve issues relating to your finances or property through your divorce or separation.

The should try to use mediation for a number of reasons. The Ministry of Justice and the Courts actively encourage mediation as a more conducive way of resolving family related disputes. The main advantages are that it is a far quicker way of resolving issues and a considerably less cost. You will not be required to pay Court fees or legal fees for representation. Mediation is also a far less stressful experience, and actually can facilitate an amicable divorce.

Because of these advantages and the encouragement to try and use mediation, you usually do have to attend a MIAM to explore whether mediation is right for your case. There are however circumstances where mediation just is not suitable in your case. Usually this will be established by the family mediator at your MIAM, but there are 15 exemptions that mean that you do not have to attend a MIAM. These are listed below.

MIAM Exemptions in UK family law

1. Domestic abuse

If you or your children have been subjected to domestic abuse then you will be exempt from attending a MIAM. To do this, you will need to tick the relevant exemption box on your Court application and provide evidence of the domestic abuse. There are a number of different examples of evidence provided on the Court application which you can provide, this includes evidence of criminal arrest or charge for a domestic abuse offence, a written letter from your GP evidencing support for domestic abuse, or a statement from a domestic abuse organisation from which you have received support.

2. One of the participants live abroad

You can be exempt from attending a MIAM if either you or the other party live outside England and Wales. This is because that attending a MIAM physically is difficult. However, this exemption is now less used given that mediation is commonly run virtually so there is no requirement to attend physically. Direct Mediation Services offer a complete virtual service if you need it.

3. You don’t know where the respondent is living

If after taking steps to try and locate the other party, you still do not know where they are living then you will not need to attend a MIAM. This is simply because it will not be possible to invite them to attend family mediation. Again, this one can be trickier as we can send invitations via email or text message if you have access to this. But if you have no contact information at all then you will be exempt from the MIAM.

4. You have attended a MIAM before

You will be exempt from attending another MIAM if you have already attended in the last 4 months. You will need to be able to evidence this by your mediation certificate which will have been given to you by your mediator at the previous MIAM. The certificate is only valid for 4 months.

5. You have an ongoing Court case

If you already have a case relating to the dispute that is ongoing at Court, then you will not need to attend another MIAM. This is only relating to cases that are ongoing, if the case is historic and closed then you will need to attend another MIAM.

6. Your case is urgent

If the Court considers your case to be urgent then you will not need to attend a MIAM. It is important to know here that cases are only urgent in specific, quite serious, circumstances. We have written before about urgency that can give you more information, but usually it is where the child is experiencing or is at risk of experiencing significant harm. It is recommended that if you think your case is urgent you should receive legal advice.

7. You have concerns about your child’s safety

This is similar to the above in that it applies only in specific, serious circumstances. If the child the application relates to is involved with social services due to safety and/or is subject to a child protection plan then there is no requirement to attend a MIAM.

8. Your case is without notice

Again, this relates to safety and safeguarding. A without notice hearing applies where it is necessary to protect the safety of the parties involved. The decision as to whether a case is without notice is for the Court. You should receive legal advice if you think this applies to you.

9. You are unable to attend a MIAM due to a disability

If you are disabled and that results in you being unable to access a MIAM then you will not need to attempt a MIAM. You should exhaust all options before selecting this exemption. You will need to try any mediators that are within 15 miles of where you live and be able to evidence to the Court that these were not suitable. You should also consider attending an online MIAM.

10. One of the participants are serving a custodial sentence or are subject to bail conditions

If any of the participants to mediation are in prison, then mediation cannot take place so you will be exempt from attending a MIAM. Similarly, if specific bail conditions are in place that mean that mediation will not be able to go ahead, then you can claim this exemption.

11. One of the participants is under 18

If either of the parties are under 18 then mediation usually cannot go ahead so you are able to claim this exemption and make a direct application to Court.

12. There are no family mediators near where you live (15 miles)

This exemption is self-explanatory, however it is important to note that with online mediation now being exceedingly prominent it may be more difficult to prove this at Court.

13. There is no availability for mediation in your area

If you have attempted to book a MIAM with a minimum of 3 providers within a 15 mile radius of where you live and all have said they have no capacity for the next 3 weeks then you can claim this exemption. This is quite rare and again, with online mediation becoming prominent it is unlikely that you would face this issue.

14. Your application is for a consent order

If you have already made an agreement outside of Court and are applying for a consent order (for either a financial consent order or a child arrangement order) then you will not need to attempt mediation as you have already reached an agreement. 

15. Either you or the participant is/is about to be bankrupt (in financial applications only)

 Because bankruptcy adds complexity to disputes regarding financial arrangements (mainly because a person in bankruptcy is not able to control their finances), mediation is not suitable and therefore it is a matter for the Courts to deal with. It is suggested that you should seek legal advice in these circumstances.

Concluding comments about MIAM exemptions

Currently, the above are the exemptions that are in place to not have to fulfil the requirement of attending a MIAM before making a Court application in family disputes. In most cases, these exemptions will not apply and it is usually the case that you will need to attempt mediation.

It is important to note that as a respondent party, these exemptions also apply. If you are worried that you have received an invitation to mediate and you don’t want to attend, you can check our blog here for further information.

Sometimes it might be that your case is not as clear-cut as these exemptions. If you are in this situation it may be useful to attend a MIAM with a mediator to discuss it with them, as our mediators are able to issue you a certificate so that you can apply to Court on the same day if you do not wish to proceed to mediation.

You can speak with our friendly team to book an online mediation services or for a no obligation chat on 0113 468 9593. There is also the form below, which you can complete for a free call back.