Are There Any Grounds to Refuse Mediation in Australia?

Where a dispute remains unresolved, parties may look to mediation as a form of alternative dispute resolution engaging a mediator as an impartial party to assist the parties in promptly and cost-effectively resolving their matter.

Mediation is voluntary and parties are free to refuse to participate in mediation, however, there could be financial and legal implications for refusing to participate in mediation.

What are Mediator’s grounds for not conducting mediation?

There are limited circumstances in which a mediator may not decide to pursue a mediation between the parties which are:

1. The law in Australia prevents mediation from being conducted by the mediator;
2. Conducting mediation could place the health, safety, or welfare of one of both parties at risk;
3. Information held by the mediator may impend on their ability to act impartially;
4. Information held by the mediator deems it inappropriate to conduct mediation.

Refusal or failure to attend mediation

For family law mediation matters, parties that have been invited by a mediator to participate in family dispute resolution (FDR) are strongly encouraged to attend due to the law imposing financial and legal implications on them which include:

1. Holding them liable for the other party’s legal costs; and
2. Ordering them back to mediation.

Where a party refuses or fails to attend, it is common that the initiating party requests a Section 60 Certificate from the mediator (FDRPs only can issue this certificate) which informs the court of the outcome of mediation, specifically that the other party failed to attend. Such abuse of process would see parties being unable to resolve their issues for up to 12 months, something which the court generally does not take lightly.

Responding parties’ grounds to refuse mediation

The responding party could allege but would need to demonstrate the following to refuse mediation:

1. The mediator has not disclosed a conflict of interest;
2. There are extenuating circumstances that would place their safety at risk;
3. They have left the court;
4. They meet and are able to demonstrate the exemptions under the Act;

Where a party merely advises they cannot afford the fees to mediation, this does not constitute reasonable grounds for failing to attend mediation.

Understanding the benefits

Parties that have been invited to mediation, should see the invitation as an opportunity to resolve the matters with a say in the outcome. In the court process, whilst legal practitioners will make their case to the court, they have little say in the outcome or even the quantum of damages for financial settlement. Mediation should be embraced by both parties as the alternative of court proceedings is a lengthy, stressful, costly, and uncertain time that most parties regret commencing.

NOTICE: The above is not legal advice and it is recommended that you obtain tailored legal advice related to your own personal circumstances from an Australian legal practitioner.