Costs in Family Proceedings and the Benefits of Mediation: Lessons from SM v BA [2025] EWFC 7
We mediate in civil cases but a recent family case highlights the issue of costs in legal proceedings.
Family litigation is often an emotionally and financially draining process. The recent case of SM v BA [2025] EWFC 7 highlights the high costs involved in family proceedings and serves as a stark reminder of the potential benefits of mediation. In this article, we explore the financial implications of family litigation, the principles governing legal cost funding, and why mediation may offer a more cost-effective and amicable resolution.
The Financial Burden of Family Proceedings
In SM v BA [2025] EWFC 7, the court ordered H to pay W’s solicitors a total of £752,975 in legal fees. This figure included:
• £177,975 for historic costs
• £500,000 for future financial remedy costs
• £75,000 for Family Law Act 1996 proceedings
This sum, although substantial, was still significantly less than the £1,121,467 sought by W, highlighting the issue of proportionality in legal costs. The court had to strike a balance between ensuring W had access to appropriate legal representation (as per Matrimonial Causes Act 1973, s.22ZA(3)) and avoiding excessive litigation expenses.
The judgment also referenced BC v DE [2016] and WG v HG [2018] EWFC 84, reinforcing the principle that litigation should not be pursued on the assumption that one party will cover all costs, regardless of reasonableness. As Francis J stated in WG v HG, “people cannot litigate on the basis that they are bound to be reimbursed their costs… no one enters litigation simply expecting a blank cheque.â€
The Risk of Costs Orders Against Litigants
The judge in SM v BA issued a clear warning about costs consequences. If either party’s conduct was unreasonable, they could face adverse costs orders under FPR 2010 r.28.3(6)-(7). This means that if a party acts unreasonably—such as refusing reasonable settlement offers or prolonging litigation unnecessarily—they may be required to pay the other party’s legal costs.
This reinforces the importance of proportionality and reasonable conduct in family disputes. While litigation is sometimes necessary, parties should be aware that an aggressive approach could result in significant financial penalties.
The Case for Mediation
The financial realities of SM v BA illustrate why alternative dispute resolution, particularly mediation, is often a better option for family disputes.
1. Cost-Effectiveness
Mediation is significantly cheaper than litigation. While the legal costs in SM v BA reached hundreds of thousands of pounds, mediation costs are typically a fraction of this amount. Instead of funding years of court battles, parties can allocate resources towards future financial stability and their children’s welfare.
2. Faster Resolution
Court proceedings can take years, as seen in high-value financial disputes. Mediation, on the other hand, can resolve issues in a matter of weeks or months, reducing both emotional stress and financial burden.
3. Control Over Outcomes
Unlike court-imposed decisions, mediation allows both parties to have greater control over the outcome. Agreements reached through mediation are tailored to the family’s specific needs, rather than dictated by a judge.
4. Reducing Conflict and Preserving Relationships
Litigation is adversarial by nature, often damaging relationships between separating partners—which can be especially harmful when children are involved. Mediation fosters collaboration and communication, making co-parenting and future interactions smoother.
5. Confidentiality and Privacy
Unlike court proceedings, which are often reported, mediation remains confidential. This ensures that private family matters do not become public knowledge.
Conclusion
The case of SM v BA [2025] EWFC 7 highlights the exorbitant costs of family litigation and the risks of assuming that the opposing party will cover all legal fees. The ruling also serves as a reminder that courts will not hesitate to impose adverse costs orders if a party acts unreasonably.
Given these risks, parties should seriously consider mediation as a viable alternative. Mediation offers a cost-effective, faster, and less adversarial route to resolving disputes, ensuring that financial resources are used for the future rather than legal battles.
While litigation may sometimes be necessary, families should weigh the potential financial and emotional toll before embarking on lengthy court proceedings. Mediation, when feasible, remains the more pragmatic and constructive approach.