When mediation fails: what happens next? — Gorval + Partners Lawyers

Family law disputes can often be resolved without going to Court through negotiation, mediation or family dispute resolution. In parenting matters, the law encourages parents to attempt to resolve disputes before commencing Court proceedings. However, what happens if one parent refuses to participate?

Is mediation required before going to Court?

In most parenting matters, a person who wishes to commence proceedings must first make a genuine attempt to resolve the dispute through family dispute resolution (FDR).

Family dispute resolution is a process where an independent third party assists parents to discuss issues and attempt to reach an agreement about parenting arrangements.

The purpose of mediation is to:

provide parents with an opportunity to resolve disputes without litigation;
reduce conflict between parents;
allow parents to make decisions that are in the best interests of their children; and
avoid the time and cost associated with Court proceedings.

However, mediation is not appropriate or required in every situation.

What if my ex refuses to attend?

If one parent refuses to participate in mediation, the other parent may still be able to proceed.

A person may obtain a section 60I certificate from a registered family dispute resolution practitioner confirming that family dispute resolution was attempted or was not suitable.

The certificate may be issued where:

the other party refused or failed to attend;
the practitioner considered the matter unsuitable for mediation;
the parties attended but were unable to reach an agreement; or
the parties made a genuine effort but the dispute remained unresolved.

A section 60I certificate allows a parent to commence parenting proceedings in the Federal Circuit and Family Court of Australia.

Are there exceptions to mediation?

There are circumstances where a person may commence Court proceedings without first attempting family dispute resolution.

Examples include where:

there are allegations of family violence;
there is a risk of child abuse or family violence;
the matter is urgent;
a person is unable to participate effectively due to circumstances such as incapacity or geographic location; or
there are other exceptional circumstances.

The Court recognises that mediation is not appropriate where there are significant safety concerns or where there is a substantial power imbalance between the parties.

What happens after mediation fails?

If mediation does not result in an agreement, either party may commence proceedings in Court (provided the necessary requirements have been met).

Once proceedings are commenced, the Court may:

make interim parenting orders;
require the parties to participate in further dispute resolution;
appoint an Independent Children’s Lawyer in appropriate cases;
order the preparation of family reports; or
ultimately determine the parenting arrangements after considering the best interests of the child.

The Court’s focus remains on what arrangements best promote the child’s welfare, safety and development.

Key takeaway

Mediation is an important step in many parenting disputes, but it is not intended to prevent a person from seeking Court assistance where agreement cannot be reached.

If the other parent refuses to participate in mediation, this does not mean you are unable to progress your matter. Obtaining advice early can assist in determining whether mediation is appropriate and what steps should be taken next.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our family lawyers about your specific circumstances.

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