If you are heading towards a family court application, you will meet a form called the FM5. At heart, it asks you a single question: what have you done to try to resolve this without a judge? Since April 2024 the courts expect a genuine effort to resolve matters out of court first, and mediation is the most established way to do that. This article explains what the court now expects, and where mediation fits in.
What the FM5 is, in one paragraph
The FM5 is a court form, formally a “Statement of Position on Non-Court Dispute Resolution”, introduced on 29 April 2024. In private law children cases and contested financial cases, both parties must file one, usually at least seven days before the first hearing, setting out what they have done to resolve matters away from court and, if they have not, why not. There is an exception where domestic abuse is an issue. But rather than dwell on the mechanics of the form, it is worth understanding the shift in thinking behind it, because that is what really affects you.
The bigger picture: the courts have changed their expectations
The FM5 is one part of a wider change that came into force in April 2024. The family courts in England and Wales now expect couples to make a genuine effort to resolve disputes away from court before asking a judge to decide. This is not a gentle suggestion. The courts can now pause proceedings to allow non-court dispute resolution to be explored, even where one party has not agreed to it, and, importantly, a party who unreasonably refuses to engage in it may face an order to pay the other side’s costs.
In other words, the question the FM5 asks is now backed by real consequences. Arriving at court having made no effort to resolve things, with no good reason, is no longer treated as neutral by the court, and it is worth being aware of that before you get there.
Why mediation is the strongest thing you can point to
Non-court dispute resolution covers several options, including arbitration, collaborative law and neutral evaluation. But mediation is the most established, the most accessible and usually the most affordable, which is why, for most families, it is the natural way to meet the court’s expectation.
If you have genuinely engaged in mediation, you can complete your FM5 straightforwardly and honestly. Whether or not mediation resolved everything, you can show the court that you took the constructive route, tried to reach agreement, and treated court as a last resort rather than a first move. That is exactly the approach the new rules are designed to encourage, and it is usually the approach that leads to a better outcome for the whole family.
An important point most people miss
Here is a detail that catches many people out, and it is worth understanding clearly. On the FM5, simply attending a MIAM does not, by itself, count as having done non-court dispute resolution. The MIAM is the assessment meeting that comes first. What counts as NCDR is actually engaging in the process, joint mediation sessions, or another qualifying route such as arbitration.
So if you want to show genuine engagement with non-court dispute resolution, attending your MIAM and then stopping is not enough on its own. Taking part in mediation itself is what demonstrates real engagement. This is not a reason to feel caught out; it is a reason to give mediation a proper try, which for most families is worthwhile in its own right.
What if the other person will not engage?
You can only control your own conduct, not your former partner’s. If you propose mediation and genuinely try, and the other party is unwilling, you can still record honestly on your FM5 that you were willing to resolve matters out of court. Since April 2024, a party who unreasonably refuses to attend a MIAM or engage in non-court dispute resolution may face costs consequences, so making a genuine effort is worthwhile whatever the other person decides. Even so, mediation works best when both people come to it willing, and often a reluctant party is more open than expected once the process is explained to them.
How this works in practice with We Mediate
The practical path is straightforward. You attend a MIAM, where the mediator explains your options and assesses whether mediation is suitable. If it is, and the other party is willing, you take part in joint mediation sessions and work towards agreement. If you reach one, you may avoid court altogether, which is the best outcome of all. If you do not, or the other party will not engage, you have nonetheless done exactly what the court expects, and you have the certificate you need to proceed.
A mediator cannot complete your FM5 for you, it is your own statement to the court, but genuine engagement with mediation gives you something real and positive to put on it.
The takeaway
It is tempting to see the FM5 as a hurdle to clear. It is better understood as an invitation to do the sensible thing first. The families who approach it well are those who genuinely try to resolve matters through mediation, because that is both what the court now expects and, very often, what leads to a better, cheaper and less painful outcome than court ever would.
Facing a court application?
Mediation is the most established way to meet the court’s expectation that you try to resolve things first. Your MIAM is the first step.
Book your MIAM | Call 0333 567 1676 | mediators@wemediate.co.uk
This article is general information about the family court process in England and Wales and is not legal advice. For advice on your own circumstances, consult a family solicitor.
