It’s not uncommon to hear the question ‘can I refuse divorce mediation?’ when people first contact me to discuss their divorce or separation.
Let’s explore whether you can refuse divorce mediation and what the consequences may be.
Can I Refuse Divorce Mediation?
You most certainly can refuse to attend divorce mediation (or some other form of alternative dispute resolution). However, unless you have a legitimate reason, it may end up costing you a lot than participating in mediation and, at least, making an effort to get matters resolved without Court action.
In parenting matters the Family Court has a discretion to make a costs order against a party who has refused to undertake mediation. So think carefully here before you decide to refuse to participate in mediation.
The Family Law does its utmost to encourage spouses to divorce amicably and make joint parenting arrangements they can both live with.
The end result is that over 90% of all separations in Australia are resolved without a decision of the Family Court. However, the law does accept that mediation may not always be the best option and grants exemptions where either partner may have valid reason(s) not to do so.
What Are Valid Reasons For Not Attending Divorce Mediation?
There are four main reasons that might justify a party not participating in alternative dispute resolution:
1. abuse of any kind. There may also be the risk of violence or abuse to a child or to a spouse, causing them not to feel safe to participate in a mediation process;
2. incapacity, perhaps through mental illness, or living in a remote area, too far away from a Family Dispute Resolution service provider;
3. urgency in the matter. For instance, there could be a risk of a child being abducted by a spouse, perhaps taken out of the country. Another possibility is that the one spouse has left and cannot be traced.
4. a genuine concern that your spouse may have a serious disregard of any obligations, or has contravened any order during the past 12 months.
Mediation is a voluntary process, where both partners need to openly disclose sensitive and confidential information, including assets, expenditures and earnings. A reluctance to disclose such information defeats the whole purpose of mediation.
This gives the other partner no choice but to seek a decision from the Family Court, which can be a costly, lengthy and most stressful process.
What Are My Options If I Refuse Divorce Mediation?
Before you even think of seeking an exemption from Family Dispute Resolution, it is strongly recommended that you get sound legal advice from a competent family lawyer. They will advise you whether your reasons are valid, explain the process to follow and the possible consequences thereof.
If the other party refuses divorce mediation in parenting matters you will need to get a Certificate from a Family Dispute Resolution Practitioner to take the matter to Family Court.
A certificate is valid for 12 months.
If you have more questions about the divorce mediation process, get in touch with me today.
Divorce mediation is one of the most effective and affordable ways to settle your divorce with terms that everyone can agree to – so don’t discount it without serious consideration.