Can you apply to court, but also engage in mediation?

Understanding the ‘Two-Pronged Approach’ in Family Mediation and Court Proceedings

Finding a good way to handle conflicts during a separation can be challenging. Family mediation is often suggested as a helpful first step for sorting out issues like divorce, child arrangements, and financial disputes. It’s usually cost-effective, confidential, and focuses on working together to find solutions. However, in some cases, family mediation alone might not be enough. That’s when some people choose to also take their case to court while still participating in mediation. This combined strategy is known as the “two-pronged approach.”

What is the Two-Pronged Approach?

The two-pronged approach refers to filing a court application while simultaneously engaging in family mediation. This strategy allows parties to explore mediation in the hope of reaching an amicable agreement while also preparing for the possibility that mediation may not succeed. In such cases, court proceedings are already in motion, minimising delays if mediation breaks down.

Why choose the Two-Pronged Approach?

In most cases the logic for adopting a two-pronged approach is to save time. It typically takes around three months to secure the first court hearing after filing an application. If a party were to wait until mediation concludes before filing, this could significantly delay the resolution process, particularly if mediation fails.

By filing at court while mediation is underway, clients can keep their options open without wasting time, ensuring a smoother transition if mediation does not result in an agreement.

Here’s a short list of questions to consider when deciding whether to adopt a two-pronged approach:

• What if my ex refuses to attend mediation?

If you anticipate that your ex-partner might not engage in mediation, starting court proceedings early can ensure you are not delayed if mediation does not commence.

• What if mediation breaks down without an agreement?

Filing at court in parallel means you won’t lose time if mediation ends without a resolution.

• Do I need a legally binding decision quickly?

If you require a formal, enforceable decision due to time-sensitive issues, such as child arrangements or financial matters, the court process may provide a quicker resolution.

• Am I concerned about the other party delaying or not engaging fully in mediation?

Initiating court proceedings can act as a safeguard against delays or lack of commitment during family mediation.

• Is there a history of conflict or non-cooperation that may impact mediation?

If previous attempts at communication have been difficult, a two-pronged approach can provide a structured path forward.

How can a Two-Pronged Approach help my situation?

A Two-Pronged Approach offers a safety net if you have reservations about whether family mediation would help; this strategy ensures that legal proceedings are in motion should mediation not achieve the desired outcome. By considering mediation as a form of ADR, you will have demonstrated to the court that you’ve engaged with their preferred resolution path, which reflects favourably on your commitment to resolving issues amicably.

Here are a few other positives to consider:

Efficiency and Time Management

Since court proceedings can take several months to progress, initiating them alongside family mediation allows parties to avoid unnecessary delays. If mediation succeeds, court proceedings can be halted, but if not, the parties have already taken the necessary steps towards a legal resolution.

Transparency with All Parties

When employing a two-pronged approach, it’s important to inform the other party and the mediator that you have filed an application in court. This transparency helps maintain trust and cooperation during the mediation process and ensures that all parties are aware of the potential legal trajectory.

Steps for Implementing a Two-Pronged Approach

1 – Attend a MIAM and Invite the Other Party

Start by attending a Mediation Information and Assessment Meeting (MIAM), which is required before you can begin mediation or file a court application. Mediate UK offers the convenience of an online MIAM, allowing you to quickly and easily fulfil this requirement. We will notify the other party of your attendance and invite them to participate in the mediation process.

2 – File the Court Application

Submit the necessary paperwork to initiate court proceedings promptly, following family law procedures. This ensures that the legal process is in motion, providing a safety net if family mediation doesn’t lead to an agreement or simply does not commence.

If you need help with your application, find out more about our court form completion packages HERE

3 – Continue with Mediation with an Open Mind

While your court application is pending, continue engaging in mediation with a willingness to find common ground. Many disputes are resolved through mediation, potentially making court proceedings unnecessary and encouraging a more amicable resolution.

The importance of attending a MIAM

A Mediation Information and Assessment Meeting (MIAM) is a preliminary meeting with a qualified mediator to discuss the nature of your dispute, explore the mediation process, and assess whether mediation is suitable for your situation. It also demonstrates to the court that you have considered mediation as a form of alternative dispute resolution (ADR).

Here are some key reasons for attending a MIAM:

Statutory Requirement – Attending an MIAM is a requirement before you can apply to court – except in certain exemptions, such as cases involving domestic violence or urgent child protection issues. It is also the starting point for mediation, as it ensures both parties are informed and prepared to engage in the process.

Understanding Mediation – During the MIAM, the mediator will provide an overview of how mediation works, including how it can help parties reach mutually agreeable outcomes without the need for a court decision.

Assessing Suitability – The mediator will assess whether mediation is appropriate for your case. Factors such as domestic abuse, power imbalances, or other concerns might make mediation unsuitable, in which case court proceedings might be recommended instead.

Exploring Dispute Resolution Options – The mediator will explain various methods for resolving family disputes, including mediation, collaborative law and court proceedings, highlighting the benefits and potential drawbacks of each.

What happens to the court application if we reach an agreement in mediation?

If you reach an agreement during mediation while your court application is still pending, you can request to have the court proceedings put on hold or dismissed. Here’s how it typically works:

1) Request to Cancel or Suspend the Court Hearing – You can formally request that the court cancel or suspend the scheduled hearing. This usually involves submitting a notice or application to the court, indicating that the matter has been resolved through mediation.

2) File a Consent Order (if applicable) – If your agreement involves terms you want to become legally binding, you may need to submit a consent order for the court’s approval. This order formalises your agreement and makes it enforceable. Whilst you do not need to attend court for a financial consent order, you will both need to attend court for a child arrangements order.

By taking these steps, you can ensure that your court date is cancelled or postponed, reflecting the resolution reached through mediation.

Summary

The two-pronged approach in family mediation and court proceedings provides a balanced way to handle family disputes. It recognises the importance of mediation as an important method of conflict resolution while also acknowledging the need to prepare for alternative outcomes.

By initiating court proceedings in parallel, clients can safeguard against the time delays that may arise if family mediation does not succeed, ensuring that they are prepared to proceed without unnecessary setbacks. Do bear in mind that filling an application to the court does cost money and you will not get this back if you do not wish to use the court services.

Most people choose to apply to court as a last resort if mediation has broken down. With Mediate UK 90% of clients are able to reach an agreement through our tried and tested method of progressive mediation.