As a family mediator in Perth I come across all sorts of reasons why people want to – or don’t want to – participate in family mediation where children’s issues are involved. But there are only a few reasonable grounds to refuse mediation.
Simply not wanting to attend is not a reasonable ground to refuse family mediation, especially if it has been ordered by the Family Court or is a pre-requisite to commencing proceedings where children’s issues are involved.
Let’s take a look at some of the reasonable grounds to refuse family mediation and how they might affect your mediation process.
Existing Legal Issues
Existing legal issues – such as criminal charges, restrictive bail conditions, restraining orders or other court undertakings – may serve as sufficient grounds to refuse mediation.
For example, there may be a court order in place which prohibits the two parties from being in any close contact with each other. Most restraining orders contain which enable parties to participate in mediation or communicate through their lawyers.
A Mediator’s Discretion
Accredited mediators have a wide discretion to advise parties that they are not prepared to mediate family issues in certain circumstances. Here are some examples:
Previously Disobeyed Court Orders
A person has violated a Court Order and the violation needs to be resolved by the Court.
Pending Consent Orders
Where Consent Orders are already before the Court but the Orders have not yet been issued by the Court means that the parties have already reached agreement on children’s and parental matters, which negates the purpose of attending family mediation.
Limited Capacity
If either or both parties are suffering from mental health issues and are unable to make decisions for themselves or are temporarily or permanently incapacitated, they can be deemed to be incapable of attending family mediation.
History of Violence
If there has been a history of abuse or violence or a threat of any such acts, this may be considered reasonable grounds to refuse family mediation. Alternative modes of mediation – such as video conferencing or telephone link ups – may be an alternative.
Fear Of The Other Party
If a person fears for their own or their family’s safety due to a risk of intimidation, abuse, abduction, or violence, family mediation may be inappropriate.
Health, Welfare & Well-Being of a Party
If, for whatever reason, a person’s health, welfare or well-being is at risk by engaging in mediation, it will be deemed unsuitable.
Living in a Remote Area
Sometimes, due to a party or parties living in a remote area, far from an accredited family mediator, mediation might be considered unsuitable. However, with options like video conferencing and telephone link-ups, have reduced this difficulty.
Urgent Matters
There are times when an urgent matter have to be addressed by the Family Court, leaving no time for family mediation. One such example would be if there’s a risk of a parent relocating and taking a child with them without the other parent’s consent.
Financial Disclosure
Mediation to resolve financial settlement is a voluntary process but both parties are required to fully and honestly disclose all relevant financial information. Refusal to provide information – such as earnings, assets, shareholdings or superannuation entitlements – would entitle the other party to refuse to participate in mediation.
What are not reasonable grounds to refuse mediation?
Using affordability as a reason or refusing to attend mediation is usually not considered to be reasonable grounds to refuse mediation. The financial consequences of litigation in the Family Court are considerably more difficult than the shared cost of a mediation.
Where a party simply refuses to participate in mediation without providing acceptable reasons, the other party usually has no choice but to take the matter to the Family Court. In these circumstances a costs order might be made against the party who refuses to mediate.
Therefore, legal advice is strongly recommended if you’re intending to refuse family mediation for whatever reason.
Can a mediator refuse to undertake a family mediation?
A mediator has a wide discretion as to whether to accept mediation in addition to any of the above reasons. Mediators should also refuse if they are privy to any information that may affect their impartiality or have a prior connection with one of the parties.
In children’s matters where a mediator deems it inappropriate and refuses to undertake a family mediation, they will issue a Section 60I Certificate stating the reasons, which will allow the matter to be heard in a Court.
Got more questions about family mediation or want to get started with your own family mediation?
Contact Ian Shann today – one of Perth’s leading family mediators.
