Costs consequences for refusing NCDR
Key facts
- The usual rule in financial remedy cases is that each person pays their own legal costs.
- Since 29 April 2024, failing without good reason to attend a MIAM or non-court dispute resolution is listed as conduct that can justify a costs order.
- The rule is FPR 28.3(7), and it applies to financial remedy proceedings.
- Good reasons for not engaging exist, including domestic abuse and other valid MIAM exemptions.
- In children proceedings costs orders remain rare, but refusal to engage still influences how the judge manages the case.
- The protection is simple: attend the MIAM, respond to invitations in writing, engage genuinely, and file an honest FM5.
For years, refusing to mediate in a family case carried little practical risk. A party could decline every invitation, fight the case to a final hearing, and still expect to pay only their own lawyers, because the standard rule in financial remedy proceedings is no order as to costs. That calculation changed on 29 April 2024. Refusing non-court dispute resolution without a good reason can now shift part of the other side’s legal bill onto you.
This guide explains the rule, what judges are likely to treat as unreasonable refusal, and the straightforward steps that keep you safe. It belongs to our section on NCDR and the law, which covers the April 2024 changes as a whole.
The starting point: everyone pays their own costs
In financial remedy proceedings, the general rule under Part 28 of the Family Procedure Rules is that the court will not make an order requiring one party to pay the other’s costs. Each side funds its own solicitors and barristers, win or lose. The thinking is that costs orders would eat into the very assets the court is trying to divide fairly, and would encourage point-scoring litigation.
The rule has always had an exception for conduct: where a party has behaved badly in the litigation, the court may depart from the general rule and order them to contribute to the other side’s costs. Rule 28.3(7) lists what counts. Before 2024 the list covered things like breaching court orders, pursuing hopeless arguments, and refusing sensible open offers to settle. The April 2024 amendment added something new at the top of the list.
The law
Rule 28.3(7) of the Family Procedure Rules, as amended from 29 April 2024, requires the court, when deciding whether to make a costs order in financial remedy proceedings, to have regard to any failure by a party, without good reason, to attend a MIAM or to attend non-court dispute resolution.
What changed in April 2024
The amendment slots refusal of NCDR into the conduct list. In plain terms: if you skipped the MIAM without a valid exemption, or brushed aside reasonable invitations to mediate, arbitrate or attend a private FDR, the judge can treat that as conduct justifying a costs order against you, even if the financial outcome you argued for was reasonable.
The change did not appear from nowhere. In Churchill v Merthyr Tydfil County Borough Council in late 2023, the Court of Appeal confirmed that courts can order parties to engage in dispute resolution outside court. In Re X (Financial Remedy: Non-Court Dispute Resolution) in early 2024, the High Court signalled that financial remedy judges would use the incoming rules, warning that parties who failed to engage could expect it to be reflected in costs. The amended rule turned those signals into black-letter procedure.
It works alongside the other April 2024 tools. Both parties now state their position on NCDR in the FM5 form, signed with a statement of truth, so a refusal and its stated reasons are on the court file from the start. And because the court can adjourn proceedings for NCDR without consent, a party who refuses to engage voluntarily may find themselves directed towards it anyway, with their earlier refusal remembered when costs are discussed.
What does unreasonable refusal look like?
The rule only bites where there is no good reason for the failure. Judges look at the whole picture, but some patterns are clearly risky. Ignoring a mediator’s invitation letters and giving no explanation. Declining every form of NCDR while insisting only a judge will do, in a case with no safety issues and finances well within the range mediation handles daily. Claiming a MIAM exemption that turns out not to apply. Agreeing to mediate, then stalling: cancelling sessions repeatedly or attending without any intention of negotiating.
On the other side, plenty of reasons hold up. Evidence of domestic abuse is the clearest, and the rules never require a victim to negotiate with an abuser; our guide to domestic abuse and mediation explains the protections. A valid MIAM exemption, genuine urgency, a case needing a legal ruling on a point mediation cannot decide, or the other side’s own refusal to disclose finances can all be good reasons. So can having already attempted NCDR properly: the rule punishes refusal to try, not failure to settle.
Note the direction of the rule, too. It catches both applicants and respondents. A respondent cannot be forced to attend a MIAM before proceedings start, but once a financial case is running, a respondent who refuses all engagement with NCDR is exposed in exactly the same way. If your ex is the one refusing, our guide on what to do when your ex refuses mediation shows how to build the record that protects you and exposes them.
What a costs order actually means
A costs order requires one party to pay some or all of the other’s legal costs, on top of their own. In a financial remedy case that has run to a final hearing, each side’s costs commonly run well into five figures, so even a partial order hurts. The court has flexibility: it can order a contribution towards costs from a particular stage, for example every cost incurred after the date a reasonable invitation to mediate was refused.
The money comes out of the refusing party’s share of the settlement, which is the sharpest edge of the rule: a person can win the argument on the numbers and still leave with less because of how they got there. Set against that risk, the cost of engaging is small. A MIAM typically costs £100 to £150, and mediation is charged per session and shared, a fraction of what one contested hearing costs to prepare.
What about children cases?
The amended rule 28.3(7) applies to financial remedy proceedings. In children proceedings, costs orders remain unusual: courts are reluctant to penalise parents financially in disputes about a child’s welfare, and generally reserve costs orders for clearly unreasonable litigation conduct.
That does not make refusing NCDR free of consequence in a children case. The MIAM requirement still applies before a C100 is issued, both parents will usually complete FM5 forms, and the court can adjourn the proceedings for mediation whether or not both agree. A parent who refuses every attempt at agreement also invites the court to look hard at whether they are focused on the child or the fight. The pressure is real; it is simply applied through case management rather than costs.
How to protect yourself
The good news is that protection requires no legal cunning, just a genuine, documented willingness to engage. Attend the MIAM rather than hunting for an exemption that half-applies. Reply to any invitation to mediate in writing, promptly, even if your answer is a reasoned no or a counter-proposal for a different form of NCDR. If mediation starts, engage with it: turn up, disclose, negotiate.
Complete the FM5 honestly and specifically, because it is the document a costs argument will be built on months later. And make sensible open proposals where the rules allow, since a party who offered a reasonable settlement early is in a strong position whatever the final numbers say. If proceedings are already running, mediation between hearings both reduces your costs and demonstrates exactly the engagement the rule rewards; see court and mediation in parallel.
If you have a genuine reason not to engage, protect that too. Keep the evidence supporting your exemption, tell the mediator and the court the reason rather than staying silent, and take advice on whether the exemption truly covers you. The rule punishes refusal without good reason; a documented good reason is a complete answer.
Karen, a school business manager from Chester, invited her ex-husband Steve to mediate their finances three times over four months: twice through the mediator, once through her solicitor. Steve ignored the first two letters and answered the third with one line saying he would see her in court. The case ran to a final hearing over the split of two properties and his police pension. Karen’s barrister put the three refused invitations and Steve’s bare FM5 before the judge on costs. The judge decided the outcome would likely have been reached in mediation months earlier, and ordered Steve to pay £6,000 towards Karen’s costs, deducted from his share of the equity.
Steve did not lose on the numbers, his open offer had been close to the final order. He paid for refusing every chance to get there without a fight.
Frequently asked questions
Can I really be made to pay costs just for refusing mediation?
In a financial remedy case, yes. Since 29 April 2024, rule 28.3(7) of the Family Procedure Rules lists failure without good reason to attend a MIAM or non-court dispute resolution as conduct the court considers when deciding costs. Refusal alone does not guarantee an order, but it puts the question squarely before the judge.
What counts as a good reason for not mediating?
Domestic abuse is the clearest, and valid MIAM exemptions such as urgency or child protection concerns also qualify. So does having genuinely attempted NCDR without reaching agreement, or facing an ex who refuses to disclose their finances. The key is that the reason is real and, ideally, recorded at the time rather than constructed later.
Does the costs rule apply to disputes about children?
Rule 28.3(7) applies to financial remedy proceedings. In children cases costs orders remain rare and are generally reserved for clearly unreasonable conduct. But the MIAM requirement, the FM5 form and the court’s power to adjourn for mediation all still apply, so refusing to engage carries consequences in case management even without a costs order.
If I attend mediation and it fails, am I safe from a costs order?
On this ground, yes. The rule targets failure to attend without good reason, not failure to settle. Attending the MIAM, engaging genuinely in sessions and negotiating in good faith is exactly what the rules ask. Costs orders can still be made for other conduct, such as breaching orders or rejecting sensible open offers.
How do I prove my ex unreasonably refused to mediate?
Build a paper trail. Keep the mediator’s invitation letters and any replies, note dates of phone contact, and make sure your own FM5 sets out the invitations accurately. Refusals and their stated reasons are open information, unlike the content of mediation, so they can be shown to the judge when costs are argued.
Sources
- Family Procedure Rules, Part 28, rule 28.3(7) including failure to attend a MIAM or NCDR as a costs factor (accessed July 2026).
- Family Procedure Rules, Part 3, the court’s NCDR duties and adjournment powers behind the costs rule (accessed July 2026).
- Practice Direction 3A, MIAM exemptions that amount to good reasons (accessed July 2026).
- Children and Families Act 2014, section 10, the MIAM attendance requirement itself (accessed July 2026).
- GOV.UK: Statement of position on non-court dispute resolution, Form FM5, the document recording each party’s engagement with NCDR (accessed July 2026).