Can court and mediation run at the same time?
Key facts
- Yes: mediation and court proceedings routinely run side by side, and the court rules are built for it.
- Since April 2024 a court can adjourn family proceedings for mediation or other NCDR without both parties agreeing to the pause.
- What you say in mediation stays confidential: proposals are without prejudice and cannot be shown to the judge.
- Financial figures are different: the open financial statement can be seen by the court, which is why disclosure work carries forward.
- A memorandum of understanding from mediation is confidential until you both agree to turn it into a consent order.
- Cases that mediate between hearings often settle before the most expensive stages of the court timetable.
People tend to imagine mediation and court as an either-or choice: try mediation first, and if it does not work, litigate. The reality in England and Wales is messier and more useful. Court cases have long gaps between hearings, mediation can start, restart or continue in those gaps, and judges now have express powers to make room for it. Some of the most durable settlements come from couples who mediated while a court case ticked along in the background.
This guide explains how the parallel track works: the adjournment powers courts gained in April 2024, what happens practically between hearings, and, most important for anyone nervous about it, exactly what the judge can and cannot see of your mediation. It is part of our wider section on NCDR and the law.
The short answer: yes, and the rules encourage it
Nothing in the law says mediation must finish before court begins, or that issuing an application ends mediation. The two processes have different jobs. The court process moves a dispute towards a decision by a judge on a fixed timetable. Mediation moves the same dispute towards a decision by the two of you, on whatever timetable you choose. Running both at once means the court timetable acts as a backstop while you try to settle.
The Family Procedure Rules go further than merely allowing this. Part 3 places a continuing duty on the court, at every stage of proceedings, to consider whether non-court dispute resolution is appropriate. Judges ask about it at the first hearing, read both parties’ FM5 forms, and build mediation windows into directions where the case suits it.
The adjournment powers since April 2024
Before April 2024, a court could only adjourn proceedings for mediation if both parties agreed. That gave a reluctant party a veto: refuse the adjournment and the case rolled on. The amendments that came into force on 29 April 2024 removed the veto. The court can now adjourn proceedings, or a particular hearing, to allow NCDR to take place where the timetable allows sufficient time, whether or not both parties want the pause.
Courts began using the power quickly. In NA v LA, one of the first reported decisions after the change, the court paused a financial remedy case at an early stage specifically so the couple could attempt non-court dispute resolution. The message from that line of cases is consistent: parties should expect judges to make space for settlement, not just permit it.
An adjournment for mediation is not open-ended. The court typically fixes a return date or asks the parties to report back on progress, so the case never drifts. If mediation resolves everything, the proceedings end by consent; if it resolves nothing, the timetable resumes with little lost except a few weeks that would likely have passed waiting for a hearing anyway.
The law
Part 3 of the Family Procedure Rules, as amended from 29 April 2024, requires the court to consider non-court dispute resolution at every stage of proceedings and allows it to adjourn where the timetabling of proceedings allows sufficient time for NCDR to take place. The parties’ agreement to the adjournment is no longer required.
Mediating between hearings: how it works in practice
The rhythm of a family case leaves plenty of room. In a children case, weeks pass between issuing the C100 and the first hearing, and further weeks or months before any fact-finding or final hearing. In a financial case, the First Appointment is fixed 12 to 16 weeks after Form A, with the FDR months beyond that. Mediation sessions slot into those gaps, in person or online, without asking the court’s permission.
Between hearings, the mediation can use everything the court process has generated. Sworn financial disclosure narrows arguments about what exists; a Cafcass safeguarding letter clarifies what the professionals are worried about; a judge’s comments at the first hearing often reset unrealistic expectations. Mediators regularly find that a couple who deadlocked before proceedings talk very differently once each has seen the timetable and the cost estimates in black and white.
If you settle part of the case, the agreed part can go to the judge as agreed directions or a consent order while the rest continues. If you settle everything, the proceedings end: in a financial case through a consent order, in a children case through an agreed order or simply a parenting plan where no order is needed.
Why the parallel track settles cases
Part of it is deadline pressure: an approaching hearing concentrates minds in a way an open-ended negotiation never does. Part of it is information: positions soften once disclosure is complete and each side’s best and worst outcomes become visible. And part of it is cost: every stage of the court process that can be avoided is money kept in the family, and the gap between a £62 consent order fee and a fully contested case makes the arithmetic vivid.
There is also a quieter reason. A settlement reached in mediation is the couple’s own, shaped around details no court order would cover, and both people tend to follow terms they wrote themselves. Judges know this, which is why the rules push cases towards it even after proceedings have begun. If mediation during proceedings still cannot close the gap, the case simply continues, and our guide on what happens if mediation fails covers the remaining options.
What the court can and cannot see
The parallel track only works because mediation is a safe space. The rule of thumb: what you propose is protected, what you disclose is open.
| Document or information | Can the judge see it? |
|---|---|
| Discussions and offers in mediation | No. They are confidential and without prejudice, meaning they cannot be used as evidence. |
| Memorandum of understanding | No, it is without prejudice, unless you both agree to turn it into a consent order. |
| Open financial statement | Yes. The financial figures exchanged in mediation are open and can be referred to in proceedings. |
| Whether you attended, and dates | Yes. Attendance, provider and dates go on the FM5 form; the content of sessions does not. |
| Safeguarding concerns | Confidentiality has limits: mediators must act on serious risk of harm to a child or adult. |
The two documents most people ask about sit on opposite sides of the line. The memorandum of understanding, which records your proposed settlement, is without prejudice: it only becomes binding, and visible, when you choose to convert it. The open financial statement, which records the raw figures, is open precisely so the disclosure work never has to be repeated in court.
Tom issued a C100 in Bristol after his ex-wife Aisha moved their two boys to her mother’s house and reduced his weekends. At the first hearing the judge read both FM5 forms, noted that neither parent had tried mediation since the move, and adjourned the case for ten weeks with a return date. They used the gap for three online mediation sessions, held in the evenings around Aisha’s shifts. By the return hearing they had agreed a fortnightly pattern, a Wednesday video call and a plan for the boys’ school holidays, and asked the judge to make it an order by consent. The whole court case lasted one hearing and a paper approval.
The proceedings did not compete with mediation. They created the deadline, and the judge created the space.
Frequently asked questions
Do I have to tell the court we are mediating?
You will usually be asked. The FM5 form requires each party to state whether they have attended non-court dispute resolution, with the provider and dates, and judges ask about settlement efforts at hearings. You disclose the fact of mediation, never its content, which remains confidential.
Can a judge really pause our case if my ex objects?
Yes. Since 29 April 2024 the Family Procedure Rules allow the court to adjourn proceedings for non-court dispute resolution where the timetable allows sufficient time, and the parties’ agreement is no longer required. The court will normally set a return date so the case resumes promptly if mediation does not succeed.
Will mediating look like weakness in my court case?
The opposite. The rules treat willingness to engage in NCDR as exactly what a reasonable party does, and in financial cases an unreasonable refusal can now carry costs consequences. Offers made in mediation cannot be shown to the judge, so negotiating takes nothing away from the case you would run at a final hearing.
What happens to our court case if mediation settles everything?
The proceedings end by agreement. In a financial case your solicitor turns the memorandum of understanding into a consent order for the judge to approve, with a £62 fee as of 13 July 2026. In a children case the court can make the agreed arrangements into an order by consent, or the application can be withdrawn.
Is anything from mediation ever shown to the judge?
Only open material. The open financial statement recording your disclosed figures can be used in proceedings, and the FM5 records that you attended and when. Proposals, discussions and the memorandum of understanding stay without prejudice, and mediators only break confidentiality where someone is at serious risk of harm.
Sources
- Family Procedure Rules, Part 3, the court’s NCDR duty and its power to adjourn without the parties’ agreement (accessed July 2026).
- Practice Direction 3A, guidance on how the court encourages NCDR during proceedings (accessed July 2026).
- GOV.UK: Statement of position on non-court dispute resolution, Form FM5, what parties must tell the court about NCDR (accessed July 2026).
- Family Procedure Rules, Part 28, the costs relevance of failing to engage with NCDR in financial cases (accessed July 2026).
- GOV.UK: Family court fees (EX50), the £62 consent order fee (accessed July 2026).
- Family Mediation Council code of practice, confidentiality and its safeguarding limits (accessed July 2026).