Going through a separation or divorce can be a difficult and emotional time, and it can be even more challenging when your ex-partner refuses to participate in mediation. Mediation is designed to help couples reach an agreement on issues such as property, finances and child custody in a peaceful and non-adversarial manner. But what happens when one party refuses to participate?
In this blog post, we’ll explore what steps you can take if your ex-partner refuses mediation and the options available, including the family dispute resolution process, obtaining a certificate of dispute resolution (Section 60I), applying to the court for refused mediation and what to do when no agreement has been made after mediation or dispute resolution.
The Family Dispute Resolution Process
The family dispute resolution (FDR) process is a legal process that helps separating couples reach agreements on important issues such as property, finances and child custody. This process is typically carried out by a trained and neutral third-party mediator who facilitates communication and negotiation between the parties involved. Mediation is a voluntary process, meaning all parties must agree to participate before it can take place. The parties also take ownership in agreeing to an outcome. An outcome cannot be imposed on them by the mediator. Once an outcome is reached, the parties’ lawyers will draft the terms of the agreement for the parties to sign. The parties agree to be bound by that outcome once they sign those documents.
The main objective of mediation is to help the parties reach an agreement that is fair and reasonable, while minimising the emotional and financial costs of going to court. Mediation is also a faster and more cost-effective alternative to the traditional court process.
Certificate of Dispute Resolution (Section 60I)
If the parties are unable to reach an agreement during mediation, the next step is to apply for a certificate of dispute resolution (Section 60I) from a family dispute resolution practitioner. This certificate is necessary to satisfy family law pre-action procedures when applying to the court for parenting or property orders. This certificate is required to make an application to the court for a parenting or property order. Obtaining a certificate of dispute resolution means both parties have participated in good faith in the dispute resolution process and have been unable to reach an agreement.*
*not necessarily, certificates can be awarded even if both parties don’t participate, it is more so that the party bringing the application has made an attempt to resolve the dispute prior to litigation. Some disputes are unsuitable for mediation. A mediator may terminate the mediation in some circumstances if it is unproductive or hostile. Certificates can be awarded in those circumstances. The Family Law Act lists the circumstances and types of certificates at S60I.
- There are exceptions to needing an S60I – like if there is family or domestic violence issues or if an application is urgent.
Applying to the Court for Refused Mediation
If one party refuses to participate in mediation, or if the parties are unable to reach an agreement during mediation, the next step is to apply to the court for a parenting or property order. Exceptions apply. You can also still make the application, it will just be adjourned until pre-action procedures have been complied with.
When making an application to the court, it’s important to be prepared by gathering all relevant documentation and evidence, such as financial statements, property titles and any other relevant information that will help support your case. It’s also important to have a clear understanding of the laws and regulations that apply to your case and what your rights are – a qualified family lawyer can assist you with this. This can help you make a more convincing case to the court and increase your chances of success.
No Agreement Has Been Made After Mediation or Dispute Resolution
If no agreement has been reached after mediation or dispute resolution, the parties can either apply to the court for a parenting or property order, or consider other alternatives such as arbitration or negotiation with the help of a lawyer or another professional.
Arbitration is where a neutral third party (the arbitrator) is appointed to hear evidence and decide the case. This decision is binding and can be enforced by the court. The process is similar to a trial but usually quicker and less formal.
Negotiations with the help of a lawyer or another professional can also be helpful in reaching an agreement. A lawyer or another professional can help you to understand your rights and obligations and to negotiate with the other party in a calm and rational manner. They can also help you understand the legal process and the likely outcome of your case.
In conclusion, if your ex-partner refuses mediation, it can be a difficult and challenging situation. But by understanding the options available and being prepared, you can still work towards resolving the dispute efficiently and effectively. It is always advisable to seek legal advice from a professional family lawyer to help you navigate through the process and understand the best course of action for you and your family. If you would like to speak to our legal team at Greenhalgh Pickard, call (07) 5444 1022. We can assist you in understanding what to do in this situation and provide advice on the associated legalities.