Mann v Mann

An agreement to mediate before litigation may be enforceable where its subject matter, required steps and means of termination are sufficiently clear and certain. In family enforcement proceedings, the court may adjourn proceedings for a specified period to enable agreed mediation, even if a party seeks to withdraw. It cannot compel participation in the mediation itself or impose an indefinite stay. Any order preventing an application to enforce financial arrangements must respect the statutory right of access to the court.

The parties had entered into a consent order for financial relief and later agreed to attempt mediation concerning the outstanding balance and instalment payments. The mediation did not take place. The wife applied to enforce the financial obligations, while the husband argued that the agreement to mediate barred enforcement. The wife argued that the court could not compel her to mediate and alleged that the husband had breached an implied obligation to pay rent on alternative accommodation.

The court determined whether the mediation agreement was legally enforceable, whether it prevented the enforcement application, and what procedural order should follow.

1. The agreement to mediate was sufficiently certain to have legal effect. It identified the subject matter of the mediation, required the parties to use reasonable endeavours to refer those matters to mediation, specified the appointing body and applicable rules, and provided a sufficiently defined process. The absence of an express provision stating how the mediation could end was immaterial because either party could bring a mediation to an end.

2. The parties remained bound by their agreement to mediate. The mediation had not occurred through the fault of both parties, and the agreement’s reference to mediation taking place by 31 January 2012 did not release either party from the obligation.

3. The agreement did not contain an implied term requiring the husband to pay rent for substitute accommodation. The husband had complied with the financial obligations expressly imposed by the agreement.

4. Under FPR 2010 rule 3.3(1)(b), the court could adjourn the enforcement proceedings for a specified period to enable agreed ADR to take place, even though one party was attempting to withdraw. The court could not compel the parties to participate in the mediation itself.

5. An indefinite adjournment or a bar on enforcement until mediation occurred would restrict the right to apply to the court and fall foul of section 34(1)(a) of the Matrimonial Causes Act 1973. The enforcement hearing was therefore adjourned for eight weeks, giving the parties a final opportunity to mediate.

6. The adjournment was coupled with an Ungley Order. A party considering the case unsuitable for ADR was required to justify that position at the conclusion of the enforcement proceedings and file a witness statement explaining it, so that the court could consider the issue when making its costs order. Each party was also ordered to file a Form E within four weeks, with the husband appending the documents sought under CPR rule 71.2(6)(b).

First-instance decision. The judgment records earlier consent orders and a discontinued appeal, but no appellate decision on the issues determined here.