What Happens If My Ex-Partner Refuses Mediation?
Introduction
Separation and family disputes can be emotionally charged and complex. One of the key steps in resolving issues related to parenting arrangements, property settlements, and financial matters is mediation, also known as Family Dispute Resolution (FDR). But what happens if your ex-partner refuses to participate in mediation? What are your options, and how might this affect court proceedings?
In this comprehensive guide, we’ll cover:
- What happens if your ex-partner refuses mediation
- Legal requirements around mediation in Australia
- What happens if you refuse mediation
- Situations where mediation is not appropriate
- How to decline mediation properly
- Reasons someone might avoid mediation
- Alternatives to mediation when it’s not an option
What Is Mediation in Family Law?
Mediation, or Family Dispute Resolution (FDR), is a structured process where an independent third party (a mediator or FDR practitioner) helps separated couples resolve disputes regarding parenting, property, and finances. The mediator doesn’t make decisions but facilitates productive discussions to help both parties reach an agreement.
Mediation is:
- Voluntary (unless court-ordered)
- Confidential (discussions can’t be used as evidence in court)
- Focused on cooperation rather than confrontation
However, under the Family Law Act 1975, attempting mediation is a mandatory step before applying to the court for parenting orders—unless specific exemptions apply. For property matters it is not mandatory but it is recommended as you will be asked in court what you have done so far to resolve your matter.
What Happens If My Ex-Partner Refuses Mediation?
If your ex-partner refuses to attend mediation, it can be frustrating, but it doesn’t mean your case can’t progress. Here’s what you can do:
1. Apply for a Section 60I Certificate
In parenting matters, you need a Section 60I Certificate to apply to the court. This certificate is issued by an accredited FDR practitioner and confirms one of the following:
- You attended mediation but couldn’t reach an agreement
- Your ex-partner refused to attend
- Mediation was deemed inappropriate (due to factors like family violence)
With this certificate, you can proceed to file an application with the Family Court.
2. Proceed to Court
If mediation fails or is refused, you can still apply to the court for parenting or property orders. The court will take into account that you made a genuine effort to resolve the dispute outside of court.
3. Potential Consequences for the Refusing Party
Refusing to mediate without a valid reason may negatively impact the non-cooperative party in court. Possible consequences include:
- Cost orders: The court may order the refusing party to pay legal costs.
- Adverse inferences: The court might view refusal as a lack of cooperation, especially in parenting matters where the child’s best interests are paramount.
What Happens If You Refuse Mediation?
If you’re considering refusing mediation, it’s important to understand the potentiall consequences. The biggest consequence is that your ex partner will most likely go to court. Which will cost you both a lot of time and money and often the conflict escalates. This is not in the best interest of the children and it is not in the best interest of your financial situation or your mental health. Mediation is an opportunity to get temporary of final agreements in place. Mediation can be done in lots of different formats depending on your situation to keep everyone safe.
1. Impact on Court Proceedings
- Parenting Matters: Courts expect both parents to make genuine efforts to resolve disputes, as cooperation is considered in the child’s best interests.
- Property Settlements: Although mediation isn’t mandatory for property matters, courts still encourage it to save time and costs.
2. When Refusal Might Be Justified
Mediation is not always the best course of action. And you may refuse mediation if you have reasonable grounds.
We do want to note that you have an intake session with a mediator prior to your joint session in which you can tell your story and the mediator will assess if mediation is appropriate. In the intake session you are alone with the mediator and it is confidential. If you are not able to mediate due to your circumstances the mediator can deem it unsuitable if they agree with you. In that case if and when you get to court the court knows that a mediator has assessed your matter unsuitable and won’t send you back to mediation. If you have not attended mediation the certificate will say that alone and it is up to the magistrate to work out how to progress your case. The magistrate might order you both to go back to mediation. It all depends on the circumstances.
If you get invited for mediation and you are not sure what to do, get legal advice so you can work out what is the best for your specific situation.
Why Would Someone Avoid Mediation?
People may refuse or avoid mediation for several reasons:
- Fear of confrontation: Especially in high-conflict situations.
- Lack of trust: Believing the other party won’t negotiate in good faith.
- Desire for control: Some may prefer the authority of a judge’s decision.
- Unrealistic expectations: Hoping for a “better deal” through litigation.
- Advice from legal counsel: In some cases, lawyers may advise against mediation if it’s deemed unproductive.
Understanding these reasons can help you approach the situation with empathy and find alternative dispute resolution methods if needed. In any event make sure you make informed decisions and understand what it means to go to court. The court often has a long waiting list and the cost of hiring a lawyer is high. Waiting for years to get an outcome leaves you both in limbo for a long time while you are spending a lot of money. Plus getting court orders in place does not mean you have now resolved your conflict and you will never have problems again. Having agreements in place definitely decreases conflict, but from my experience I anecdotally see that people who go to court often get into higher conflict during the court process which continues after the court proceedings are done.
In mediation you are able to get more amicable agreements and hopefully not end up in such a high conflict situation.
Alternatives to Mediation
If mediation isn’t suitable, consider these options:
- Arbitration: A neutral third party (arbitrator) makes a binding decision. Common in property disputes.
- Collaborative Law: Both parties and their lawyers work together to reach an agreement without court involvement.
- Negotiation: Direct discussions between parties, sometimes with legal representation.
- Court Proceedings: As a last resort, the matter is decided by a judge.
Key Takeaways
- Mediation is mandatory for most parenting matters unless exemptions apply.
- If your ex refuses mediation, you can apply for a Section 60I Certificate and proceed
- Mediation isn’t suitable in some cases. The mediator will assess in the private intake session what the best course of action is.
- Always seek legal advice to understand your options and obligations.
Need Help Navigating Mediation or Family Disputes?
At Life Mediation, we understand how challenging family disputes can be. Led by Lisanne Iriks, a highly experienced family mediator, we offer compassionate, client-centered mediation services tailored to your unique situation. Whether you’re dealing with an uncooperative ex-partner or unsure about your legal obligations, we’re here to help.
Contact us
📞 Phone: (08) 6219 3679
📍 Location: Perth, WA (in-person, online, and phone services available)