Am I required to attend mediation in Family Law?

What is mediation?

Mediation, which is known as alternate dispute resolution, is a structured negotiation process where you use the assistance of a third party (the Mediator), to identify and assess options and negotiate an agreement to resolve your dispute.

Mediation can take place before or after court proceedings are commenced.

Am I required to attend Mediation in Family Law?

It depends. Since 2021, the Family Law Rules require all parties to a family law dispute, to attend a form of Family Dispute Resolution (FDR) and make a genuine effort to resolve their dispute.

There are a few exceptions to the rule that mediation is required before filing an application with the Court including, where there are reasonable grounds to believe that:

1. In relation to parenting matters:-

• There has been abuse of a child by one of the parties to the proceedings;
• There is a risk of abuse of the child if there is a delay in applying for an order (urgent/imminent risk of harm necessary);
• There has been family violence or there is a risk of family violence by one of the parties to the proceedings.

OR

• the application is made in circumstances of urgency;
• one of the parties is unable to participate effectively in mediation (e.g. because of an incapacity of either party, because the other person is overseas, or because the other person is unable to be located in order to invite them to mediation);
• If you are filing a contravention application in relation to an order that is less than 12 months old and there are reasonable grounds to believe that the person who has contravened the order has behaved in a way that shows serious disregard for his/her obligations under the order.

2. In relation to property matters:

• your case is urgent;
• there are family violence allegations, or a risk of family violence;
• you would be unduly prejudiced if you were required to comply with the pre-action procedures;
• you and your ex-partner have been involved in property proceedings in the 12 months immediately prior to the commencement of proceedings;
• if the proceeding is a child support application or appeal, or
• if the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act 1966.

If you refuse to participate in mediation or don’t make a genuine effort:-

• The mediator may issue a section 60I certificate stating that you did not attend or did not make a genuine effort.
• The Court may not accept your application and you will have to go back to mediation.
• It is possible that the Court may make an order for the other party’s legal costs to be paid by the person who refused to attend mediation.

Why mediate?

Mediation offers many benefits over battling it out in the courtroom, including:

• Time: ordinarily a dispute can be resolved more quickly through mediation than through a Court hearing.
• Cost: if a dispute can be resolved through mediation, the costs of preparing and running a court hearing can be avoided. Additionally, after a hearing the unsuccessful party may be ordered to pay the legal costs of the successful party.
• Flexibility: mediation offers parties more control over the outcome. A mediation process which is customised to your needs can be arranged with the mediator.
• Stress: mediation is less formal and less intimidating than appearing in court.
• Confidentiality: mediation is private and confidential. Any negotiations and offers made at a mediation cannot be used against a party if the matter does not resolve and ultimately goes to court.  
• Satisfaction: because the parties decide and agree on the outcome of their dispute they are more likely to be satisfied with the result and to comply with what has been agreed.

Are you in the process of separating? Do you have questions about mediation, parenting or property matters? If you would like to speak with one of our experienced Family Law Solicitors, please contact Solari and Stock on 8525 2700 or click here to request an appointment with one of our team.

For further information on how to separate from your spouse, please see the article ‘How do I legally separate from my spouse?’ also by Nikita Ward.

Aricle written by Nikita Ward
Photo by Vasile Tiplea on Unsplash