What if my former partner doesn’t want to go to mediation?

It is quite common when a couple separate for one of them to want to go to mediation but the other person does not. If you are in that position you cannot force the other person to go to mediation. But if they refuse:

1. If it is a parenting matter you can approach a Family Dispute Resolution Practitioner (FDRP) who will contact the person to invite them to participate in family dispute resolution. If they do not respond or they refuse to participate or they do not make a genuine attempt to resolve the dispute, the FDRP can issue a certificate under section 60I of the Family Law Act which will allow you to make an application to court. The court may look unfavourably upon a person who has not been willing to participate in mediation. For this reason most lawyers will generally advise their clients to participate in mediation to attempt to resolve the dispute rather than allow the matter to go to court.
   
   
2. If it is a property/ financial matter you can make an application to court and you don’t require a certificate. In most cases it is necessary to comply with the court’s pre-action procedures. The court is likely to order both parties to participate in mediation to attempt to resolve the dispute.
   
   

There are cases where mediation is not appropriate and the court does not expect parties to participate in mediation in those circumstances. Those cases include where there has been family violence or child abuse (or a risk of either), if there is urgency or one person is unable to participate effectively in mediation (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason).

However in most cases it is desirable for separated couples to participate in mediation and many matters are resolved at mediation. This avoids the cost, stress, delay and uncertainty of litigation. In most cases it will allow the couple to have a more positive and amicable relationship going forward. This is particularly important where there are children.