At the outset, there are circumstances in which mediation is not appropriate and we will detail them further in this article.
In Australia and throughout the World there is a growing acknowledgment that litigation does not work, but for the very few who have no other alternative. Litigation is often lengthy, costly, have little regard of the emotional impact of all involved and invariably hands down judgments that no-one typically is happy with, but have no other choice but to live with. Conversely, collaborative law, mediation, and arbitration are all ways in which you and your ex-partner are able to play very active roles in how your family law dispute is negotiated and the middle ground that you both are willing to agree to. That said, there are no winners or losers in mediation either, but you will walk away when successful spending significantly less time and money than the alternative.
Is Mediation Compulsory?
Family Law Mediation which is also called Family Dispute Resolution (“FDR“) is the mandated preliminary step to initiating court proceedings in family law matters. Once mediation has been completed hopefully your matter has now been resolved, but if not, you will be issued a certificate from the mediator advising the court whether or not a genuine attempt was made by you and your ex-partner at the mediation.
More specifically, the Certificate will state one of the following:
- the other party did not attend
- you and the other party attended and made a genuine effort to resolve the dispute
- you and the other party attended but one or both of you did not make a genuine effort to resolve the dispute
- the FDR practitioner decided your case was not appropriate for FDR, or
- the FDR practitioner decided it was not appropriate to continue partway through the FDR process.
Importantly, if you want to say “No” to mediation because you have fears of violence towards you or fears that your child or children have been abused, you need to raise this at the outset with the mediator. In these circumstances, there will be no requirement of you to attend the mediation.
But What If I Just Don’t Show Up?
There can be significant ramifications in simply not attending FDR, in particular, considerable delays in trying to get the dispute listed by the court and the potential risk that because of your no-attendance the court may order you to have to pay your ex-partners legal costs.