Mediation (also called alternative dispute resolution) in Australia is a type of dispute resolution where a trained mediator supports two or more parties in conflict reach a mutual agreement without going to court.
In family law (or family dispute resolution), a mediator does not take sides, but guide discussions for fair and practical options for both parties. This way is also faster and less expensive than litigation.
What are some reasonable grounds to refuse mediation services?
Refusing Mediation: What You Should Know
If you are handling parenting problems or parenting arrangements, or financial matters and property settlements, why might mediation not help your case?
There are few reasons why a mediator may decide not to go forward with between the parties which are:
- If Australian law stops the mediation from being conducted by the mediator;
- If conducting the mediation could place the safety, health, or welfare of one or both parties at risk;.
- If information is held by the mediator may affect whether they can act without bias.
- If the mediator has information which deems it inappropriate to conduct mediation at all.
If you have been invited by a mediator, you are strongly encouraged to attend or genuinely consider it as an alternative to litigation. Mediation is voluntary and while you are free to refuse,. the law imposes some financial and legal ramifications such as potentially:
- Holding you accountable for the other parties’ legal costs.
- Ordering you back to mediation.
If a party fails to participate or attend, the initiating party can request a Section 60I certificate from the mediator, informing the court of the outcome and that the other party refused mediation.
What To Demonstrate When Refusing Mediation as a Responding Party
There has been domestic and family violence or abuse
If there has been any history of violence, abuse or a significant power imbalance, mediation might not be appropriate for your circumstances. Sometimes, mediation is not a safe space for open negotiations.
There is a lack of good faith
Both parties must engage in discussions with an open mind, so if there’s evidence that someone is coming into mediation not in good faith, it is not a clever idea. For example, if a party is simply wishing to delay proceedings or harass the other party.
There are complex legal issues
Some disputes require a judicial decision to clearly interpret the law. Mediation will not work as it is a middle ground instead of a legal determination.
There’s urgency
Does your family law mediation case require immediate legal intervention (for example, an injunction or other court orders) to prevent imminent harm or loss – if so, mediation may not suit your needs.
There has been unsuccessful mediation in the past
Attempted mediation several times without any success? Further attempts may not be necessary and may be unlikely to resolve the dispute.
There are financial constraints
Mediation is often a lot cheaper than going to court, but the cost (such as fees for mediators) is not always a smart option, especially if the likelihood of an agreement with parties involved is little to none.
If a party cannot pay the fees to mediation, this does not always constitute reasonable grounds for failing to attend.
Read: How Long Does a Joint Divorce Application Take in Australia?
Here are some things to consider when a judge is directing you to mediation:
- Court’s discretion. A judge can order mediation at various stages of the legal proceedings, especially if they believe this agreement is cost-effective, efficient, and satisfactory to every party.
- Legislative support towards mediation. The Federal Circuit and Family Court of Australia for example have rules to empower judges to order mediation.
- Types of cases. Mediation is more common for civil cases, commercial disputes, and family law matters, and under Australian law, there is a strong emphasis on mediation attendance before court proceedings. An exception to this is where there is family violence or risk to child safety.
- Compliance with orders. Although you can be ordered to participate, you cannot be forced to agree or settle during mediation.
- The objective. Mediation provides an environment where parties can discuss disputes openly and reach a voluntary agreement.
Unsure about your legal obligations? The O’Sullivan legal team make things easy and worry-free.
Family Lawyer Support Across Sydney: Call Us
At O’Sullivan Legal, we understand that the mediation process is not always suitable for every situation. Whether you need legal advice on refusing mediation, preparing for family dispute resolution, or navigating complex parenting and property matters, our experienced family lawyers help Melbourne, Sydney, Gold Coast, and Northen Beaches cases with compassion and clarity.
We will help you understand your legal rights, present valid grounds for refusal if needed, and work toward a fair and secure outcome for your family.
Contact us today on (02) 8114 4511 or email to arrange a confidential consultation with our team. Find out more about funding your family law matter, our team and our areas of practice. Locations include:
Level 2, Suite 2.03, 491 Kent Street, Sydney NSW 2000
Level 13, 50 Cavill Avenue, Surfers Paradise QLD 4217
Level 27, 101 Collins Street, Melbourne VIC 3000Telephone: 03 9221 6344
Level 14, 3 Parramatta Square, 153 Macquarie Street, Parramatta NSW 2150Telephone:02 8114 4511
Ben O’Sullivan is an experienced family lawyer and the Director of O’Sullivan Legal. He holds a Master of Applied Family Law and is currently completing a Master of Laws (Criminal Practice) at the University of Wollongong.
Before founding the firm, Ben worked at a leading specialist family law practice in Sydney, representing clients in complex property , parenting, and child protectionand parenting matters.
His background in business and finance gives him a deep understanding of asset structures, while his collaborative and analytical approach ensures every client receives strong, compassionate advocacy.
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