What Happens If Your Ex Refuses to Mediate?
If your ex-partner won’t attend mediation, it can be frustrating, but it doesn’t mean your case can’t move forward.
Steps you can take:
1. Apply for a Section 60I Certificate
For parenting matters, you’ll need a Section 60I Certificate before applying to court. This certificate is issued by an accredited Family Dispute Resolution (FDR) practitioner and confirms one of the following:
You attended mediation, but no agreement was reached
Your ex-partner refused to attend
Mediation was found to be inappropriate (for example, due to family violence)
Once you have this certificate, you can lodge an application with the Family Court.
2. Going to Court Without Mediation
If mediation doesn’t take place or fails, you can still apply to the court for parenting or property orders. The court will consider that you made a genuine effort to resolve the matter outside of court.
3. What Happens if Someone Refuses Mediation
If a party refuses mediation without a valid reason, the court may take that into account. Some possible outcomes include:
Cost orders – the court may require the refusing party to cover legal fees
Adverse inferences – especially in parenting matters, refusal to cooperate may reflect poorly on them
If You’re Thinking About Refusing Mediation
If you’re considering saying no to mediation, it’s important to be aware of the likely consequences. In most cases, your ex will go to court, which means:
That often isn’t in anyone’s best interest, especially when children are involved.
Mediation offers a chance to work out temporary or final agreements in a structured setting. It can be adapted to suit your situation, including phone, video or shuttle mediation to keep everyone safe.
4. Impact on Different Case Types
Parenting matters: Courts expect both parents to try to resolve disputes cooperatively. This supports the child’s best interests.
Property settlements: While not mandatory, mediation is encouraged as a way to save time and costs.
5. When Refusing Mediation May Be Justified
There are situations where mediation may not be suitable. If there are safety concerns or a significant power imbalance, you may have valid reasons to opt out.
Before any joint session, each party attends a private intake session with the mediator. This is confidential. You’ll have the chance to explain your concerns, and the mediator will assess whether mediation is appropriate. If not, they can issue a certificate stating that mediation was unsuitable.
If you skip the intake entirely, the certificate will just say you didn’t attend. It’s then up to the magistrate to decide whether to send both parties back to mediation or allow the matter to proceed.
Not Sure What to Do?
If you’ve been invited to mediation and don’t know how to respond, get legal advice. A lawyer can explain your options and help you make an informed decision based on your circumstances.