What Happens When Someone Refuses Mediation?
Mediation can be a very important step of any family dispute. It is used as an effective way to keep both parties in agreement without having to go to court.
At Doolan Wagner Family Lawyers we have guided different families across different backgrounds, through the family dispute resolution process.
In the following article we are going to be taking a look at what occurs when one or either party refuses to participate in mediation.
What is Mediation?
Mediation is a form of dispute resolution where an independent person, the mediator, assists parties to negotiate a resolution to their matter. The mediator identifies issues, looks at options and tries to facilitate the parties coming to a resolution. The mediator cannot impose a decision on the parties and is simply there to aid the parties in their negotiations, and to make them more productive and structured.
Mediations can occur prior to a party filing proceedings in the Federal Circuit and Family Court of Australia (‘the Court’) and/or after proceedings have commenced. The Court has a strong focus on having parties come to an agreement outside of litigation, and as such, the Court’s pathways guide parties to mediation after proceedings are filed (even where the parties have attended failed mediations in the past).
Our team of family dispute resolution lawyers is led by Lisa Wagner, who has 30 years of experience in family mediation. If your ex-partner is refusing mediation, please reach out to receive expert advice and to find an accredited family dispute resolution practitioner (FDR practitioner) to help you with any disagreements.
The pros and cons to Mediation
The pros to parties coming to an agreement through an alternative dispute resolution (ADR) pathway like mediation, is that it is often quicker, less costly in that it allows parties to avoid the legal costs associated with litigation and it allows the parties to be in control of their own outcome.
The main con to mediation is that in circumstance where either communication between the parties has irretrievably broken down, or where there are issues of family violence, child abuse or unequal power dynamics, mediation can be inappropriate and/or ineffective.
The last important thing to note about mediation, is that it is confidential. This means that what is said and shared in a mediation cannot be used in current or future court proceedings. This allows parties to fully participate in the process and offers reassurance to anyone reluctant to engage.
What happens if a party refuses to attend Mediation prior to Court proceedings?
Ultimately, mediations prior to litigation are a voluntary process, and in these situations, you cannot force the other party to engage in a mediation. However, one party’s refusal to engage gives the other grounds to make a court application with an exemption to the requirement that they engage in family dispute resolution. In circumstances like these, it is highly important that you reach out to a qualified lawyer to help you with your court application. Considerations including the nature of the dispute can result in costs sanctions being made if mediation is unreasonably refused.
The Court has a number of pre-action procedures that a party seeking to file court proceedings must comply with. One of these procedures is the requirement the parties attend family dispute resolution (a form of ADR). If the parties attend such dispute resolution, made a genuine effort to resolve things taking into account the merits of the case and are still unable to come to an agreement, the practitioner or mediator may then issue a certificate to that effect. This certificate is necessary to file court proceedings.
However, the mediator or family dispute resolution practitioner who is engaged to try and facilitate the mediation may also issue a certificate in circumstances where one party refused to engage, allowing the other party to file court proceedings on that basis. Ultimately, while a party cannot be forced in these circumstances to attend a mediation, there are still consequences if the other party decides to file court proceedings on that basis.
What happens if a party refuses to attend a Court-ordered Mediation (or other dispute resolution process)?
Where the Court makes orders requiring parties to engage in family dispute resolution or mediation, any party making an unreasonable refusal would ultimately be in breach of those orders and consequences can follow, such as a costs penalty or costs sanction. This can include the court ordering the party in breach to pay the other party’s costs in the proceedings.
Other exemptions from attending Family Dispute Resolution
There are a number of other exemptions from the requirement that parties attend family dispute resolution (in the event that one party seeks to file court proceedings), being:-
- The application is urgent;
- There has been child abuse by one of the parties;
- There is risk of child abuse by one of the parties if filing proceedings were delayed;
- There has been family violence;
- The party would be unduly prejudiced if they were required to attend family dispute resolution; and
- A previous family law application had been filed in the previous twelve (12) months.
Seeking legal advice
It is important to seek legal advice if you are experiencing a separation and the other party has indicated that they intend to file court proceedings if you continue to refuse to attend dispute resolution.
Conversely, it is similarly just as important if you are the party seeking to resolve your matter (whether it be a parenting dispute, childcare or property matter), that you seek legal advice from an accredited family dispute resolution practitioner (FDR practitioner) and make every attempt possible to have the other party engage in dispute resolution unless one of the above exemptions apply.
Doolan Wagner Family Lawyers is a leading law firm comprised of skilled and empathetic Family Dispute Resolution practitioners, dedicated to facilitating cooperative agreement-reaching. With a distinguished track record in securing favourable out-of-court settlements through various resolution methods, we tirelessly work towards optimal negotiated outcomes for our clients, even amidst ongoing court processes. Guiding you to reach consensus on all separation-related issues is not only our aim but a commitment upon which our reputation stands.
We offer specialist family law advice and are based in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or send us an email at email@example.com to discuss your matter in complete confidence. Our dedicated team of experienced family lawyers are there to handle your matter effectively and efficiently, providing you with reliable, direct and practical advice.
Get in touch with us today to see how we can best assist you with your matter.
About the Authors:
Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist holding honours degrees in economics and law. She is also a Collaboratively trained Family Lawyer, a Family Dispute Resolution practitioner, and a Parenting Coordinator. Lisa has over 30 years’ experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters; working for the majority of that time in Sydney’s CBD as well as on Sydney’s lower North Shore and Northern Beaches.
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Emilia Turnbull holds a Bachelor of Laws and a Bachelor of Security Studies from Macquarie University and a Master of Laws specialising in International Human Rights Law from the University of NSW. She has experience in a range of property and parenting matters and has a background in Wills & Estates law as well as Family Provision litigation. Having studied International Law, Emilia has a strong focus on upholding community values and in having an empathetic approach to client concerns. Her communication skills and high attention to detail allow her to diligently represent her clients and work to achieve the best outcome possible.
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These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.