mediation before Court

[pineapplesareyellow]

Just looking for some advice. I had thought that it is now a legal requirement to seek mediation prior to a Court hearing. My partner's ex is taking him to Court, but refuses mediation on the grounds that he is aggressive towards her (he isn't, but she is determined to go to court), how can it be fair that she can tick a box that she has attended and can claim that he is aggressive towards her but he doesn't have the option to try mediation? There is no evidence of aggression, only the contrary. Ex will telephone him regularly to discuss various issues and text him and allow him to pop in whenever he's passing to see the children. TIA

Has she got a certificate from mediation that mediation is unsuitable? I'm thinking thats what you mean by she can tick a box that she has attended and can claim that he is aggressive towards her

If so, you are not getting the full story and there was provable abuse to her or the kids. She will have had to have provided that proof to the mediator.

Tread carefully. This has red flags all over it

Thank you for your reply, I'm not sure what you mean by red flags. I've known both of them for over 15 years, and he has his kids every other weekend, one evening in the week, and pops in to see them on other days whenever he's nearby. He has a great relationship with them. She is seeking an uplift in spousal maintenance and to continue maintenance for their 22 year old (on the basis that she is now full time living at home after uni, even though she has a job). Her current monthly income is approx £4.5k (after tax and with no mortgage).

Not meaning to drip feed but am just wondering how easy it is for a woman to bypass the mediation process by simply making claims like this?

(I think that she is wanting to go to court because she thinks a judge will look favourably on her, whereas she is not very mathematical/financially aware and he is so in mediation she won't really know what to say).

Sorry if I wasn't quite clear. What sort of proof would she have to have given? He can show evidence of very normal and amicable relations between them via emails/whatsapps/texts etc.

TIA

It's not easy to bypass mediation in the least. She will need evidence of a police report, social services or DV service report that he was abusive to be able to avoid mediation. The mediator needs to confirm that it isn't suitable, she can't just tick a box herself.

I had the opposite experience, exh went to mediation without telling me and told them I was being unreasonable about contact with the Dcs and they gave him the form to apply straight to the court, first I heard about anything was a letter from the court confirming the court date! I wasn't even invited to mediation. To be clear I wasn't being unreasonable, just stopped contact at his mothers house as she was upsetting the children and has serious MH issues, gave him lots of options for alternative contact etc, (he ended up trying to take the children from school in the middle of the day, luckily the school phoned me to check) so don't know what he actually said in the mediation but they just ticked the box and gave him the form!

Look at the C100 when it is served and she'll have to spell out the grounds on which she has claimed exemption. No point speculating until you've seen the form.

@purplerainboww yes, it seems the same thing has happened. I've just had a read through the court form and she's just ticked that she tried mediation but it didn't help.

[quote pineapplesareyellow]@purplerainboww yes, it seems the same thing has happened. I've just had a read through the court form and she's just ticked that she tried mediation but it didn't help.[/quote]
Not sure if it's a different process in different areas, he literally walked in gave them the money and they gave him the form! The court wasn't happy that I hadn't been invited to mediation though as I said I would have been more than willing to attend, I think that went against him in the final decision too, hope you get it all sorted

It is fairly straightforward to get a C100 form issued but it may well backfire on her because courts are increasingly expecting people to sort these things out between them, in mediation if they can't do it themselves.

There are fewer and fewer spousal orders being made as courts are also preferring clean breaks. I know if at least one case where the court reduced the spousal order. Can't see how she'll get maintenance for an earning adult either, unless unlikely to be capable of living independently, which seems unlikely if they've been off to university.

But every situation is different and depends on individual circumstances so is encourage him to seek advice. I'd strongly recommend you don't get involved and rather question why you're reading forms etc.

You can't bypass mediation at all easily. Not if you are ticking the box I attended mediation but it was deemed unsuitable.

You can refuse to attend mediation but without that box ticked you will be absolutely pilloried in court and every court decision will be less favourable to you. I know because I had to do it the first time around. Ramming my door with 4 family members present wasnt considered sufficient evidence of abuse, he'd just got a little bit cross and I'd overstated it apparently.

The final time, I did get the certificate. However it took 6 welfare concerns to social services over 4 years, (3 of which were from independent professional bodies, 4 of which involved violence to a child and only 1 of which was reported by me), one hospital level injury and one social services report. Even then a solicitor was not certain I would get the appropriate certificate because the social services report potentially wasnt strong enough.

So no its not easy to get just by making allegations. There will have been significant abuse and most likely violence towards either the ex or the kids or both.

Thats what i mean by red flags. You are with someone who has been seriously abusive, probably physically.

There is a big difference between attended mediation and mediation being deemed unsuitable due to abuse.

@Hazelnutlatteplease - her solicitor said he is aggressive towards her and therefore they can't go to mediation. She ticked the box to say she's been but it didn't work. Nobody has asked him to attend. It is actually the opposite and his solicitor has had to ask her to stop harassing him in the past. He is incredibly calm and very respectful of her. I know that 100% he has never been abusive to her or the children. This is not in question. The issue is, how easy is it for a person to make claims that mediation is unsuitable when really all she wants to do is to go to Court because she thinks she'll win.

Please don't make statements that I'm with someone who has been seriously abusive. This is not the case and should you meet her in the street she would also say so. It is a tactic for this case that's all.

Most of the posts on this thread are confused or misinformed, mainly because it appears a number of posters think that the only way to bypass mediation is to persuade the mediator that it is unsuitable by producing evidence of DV. That is completely wrong.

It is very easy to bypass mediation. All you have to do is turn up to the MIAM (Mediation Information and Assessment Meeting) and say you don't want mediation. If you do that, you have fulfilled the requirement to attend an MIAM, the mediator will tick the appropriate boxes and you can go to court. You do NOT need to convince the mediator that mediation is unsuitable. Saying you don't want it is enough.

Bypassing the MIAM is also straightforward. All she has to do is tick a box to say the grounds on which she is claiming an exemption from the MIAM then another box to show which justification she has for those grounds. If she is claiming DV, she could tick a box to say that she has a letter from an independent advisor who is supporting her, for example. She doesn't have to produce the letter at this stage and there is no involvement from the mediator. She simply has to turn up to the first hearing with her evidence.

Those saying that she must have been able to produce evidence of DV and that this is a huge red flag are mistaken. She really has, as the OP says, just ticked a couple of boxes.

@prh47bridge Thank you, I was really just after clarification that she can do this and doesn't have to attend mediation with him, or give him the opportunity to do so.

It must be the first time I've disagreed with prh47bridge. What they are saying doesnt reflect my experience of the process

That's what I did the first time round. I was completely pilloried in court for it. cafcass, social worker and court appointed guardian all minimised the physical, emotional and financial abuse. Every court appearance that followed I was told off for the judge for not having attended mediation and court orders were written with the consideration that I was "difficult" and conflictual.

Second time around I was getting that certificate saying it was unsuitable for mediation.

Yes I absolutely did have to sit in a room and provide evidence to a mediator that the abuse was sufficiently serious that mediation was unsuitable.

That letter was bloody precious and remains to this day locked in a fire proof box.

@pineapplesareyellow. Funnily enough.
This is what ExH's wife thinks too, down to the fact that he wasnt asked to attend mediation. It is almost exactly extended family have been told according to their letter.

He was asked. He actually attended a Miam. It wasn't considered suitable for mediation.

So yes it waves big red flags to me

@Hazelnutlatteplease - The ex may well have an experience similar to yours, particularly if she has claimed DV and can't produce evidence. But you are talking about what happens in court. The case the OP is talking about hasn't got that far yet. All the ex has to do to skip the MIAM is tick a couple of boxes. But yes, she may face the wrath of the judge for doing so if she has no evidence or the evidence is inadequate.

Re the "unsuitable for mediation" certificate, the current version of C100 (which is dated 2018) has a box for the mediator to tick if the applicant has attended the MIAM alone and one of the following apply:

• the applicant does not want to start or continue mediation
• the respondent refuses to attend an MIAM
• the mediator has determined that mediation is unsuitable

Only one of these needs to apply and the mediator does not have to say which one. Of course, the ex may still come in for a hard time in court if the judge thinks she has refused mediation without good cause.

Oh in which case I think what I experienced fits entirely with what you are saying!!! My evidence wasnt accepted first time around, but yes that was at court level. Second time around i got the MiAM certificate from the mediator.

All told if i was the OP I'd be thinking the ex is a bit if a twit going for court without attempting mediation. Either that or she has evidence and I'm with someone who is a cause for concern.

But genuinely the Ops DP doesn't have to have waited for an invite to have contacted mediation and attended MIAM. If he hasn't done that, the complaints about the ex sound somewhat hollow.

Ah, I didn't realise he could also contact a mediator if she is the one instigating this?

He has been corresponding with the ex's solicitor over the last few months and is keen to resolve this.