What if my ex-partner refuses to attend mediation?
One of the most frustrating situations after separation is being ready to resolve a dispute while the other person is not able or willing to participate. It is important to understand that mediation is a voluntary process, and a party may decline an invitation. However, their refusal to engage in the process does not necessarily mean that you have no options.
An accredited FDR practitioner will make reasonable attempts to contact the other participant. The practitioner will provide information about the FDR process and invite them to participate.
If the person refuses or fails to attend, the practitioner may be able to issue a section 60I certificate in accordance with the legislation and regulations. The certificate is relevant to parenting proceedings (not property) and records what occurred in the FDR process.
The invited party may have some hesitations when they receive an invitation to mediation, and the process was initiated by the other party. The mediator will explain to both parties that they are impartial, it does not matter who initiated. Both parties have an opportunity to put forward proposals and consider alternatives and the mediator will not impose an outcome on either party.
FDR is not suitable in every situation. Circumstances such as family violence, child abuse or urgency can affect whether the normal FDR requirement applies. Safety should never be compromised simply to complete a mediation process. If you are concerned about safety, tell the FDR practitioner as early as possible and obtain legal advice where appropriate.
If the other participant refuses to attend, avoid interpreting that decision as proof that the dispute can never be resolved. People sometimes refuse for a number of different reasons. The practitioner can provide information and explain the process without either participant being forced to agree. If mediation is not able to proceed at the time, you may attempt mediation again at a later date, if suitable.
Where there are safety concerns, the issue is different. Tell the practitioner about those concerns rather than trying to negotiate around them privately. The suitability assessment exists so that safety and participation can be considered before FDR proceeds and mediator conducts an ongoing assessment for safety and suitability throughout the entire process.
A section 60I certificate has specific legal requirements. Obtain legal advice about your individual circumstances. Mediation is voluntary and mediators are obligated to let you know that in the instance of a party declining to engage in mediation, a 60i certificate can be requested. A court may take into account a certificate issued under subsection 60I(8) of the Family Law Act when deciding whether to make an order referring the people to FDR or to award costs against a person. For more information, please see https://www.ag.gov.au/families-and-marriage/family-dispute-resolution/section-60i-certificates-family-dispute-resolution
You cannot force another person to cooperate, but you can make a constructive attempt and understand your next options. If the other party refuses mediation, remain calm, child focused and obtain legal advice where necessary will assist in the process.
Comments