Is Mediation Mandatory in Family Law Matters?

In Australia, family law matters can be complex and emotionally charged, especially when they involve parenting arrangements, property settlements and spousal support. To facilitate resolution of these difficult matters, all parties applying to the Federal Circuit and Family Court of Australia (the court) or the Family Court of Western Australia are encouraged to use mediation as an alternative to court proceedings. Mediation is generally less time-consuming, less costly than a court proceeding and less adversarial, helping to preserve the cordiality between the parties. This article looks at the role of mediation in family law matters, the circumstances when mediation is mandatory, and the exceptions to this requirement. 

What is mediation?

Mediation is a form of Alternative Dispute Resolution (ADR), whereby an impartial mediator helps parties who are involved in a conflict or dispute to identify options and engage with a structured negotiation process to resolve their dispute. Mediators do not impose decisions but rather try to assist the parties to resolve their issues collaboratively. Mediation is commonly used as an alternative to litigation, or as a way to narrow down the number of issues in dispute. Because the parties themselves are responsible for crafting the agreement, mediation can be an empowering alternative to litigation, and can result in more creative and appropriate outcomes for families.

Is mediation mandatory in family law matters?

Mediation is not mandatory for all family law matters, but it is required in certain cases, particularly those concerning children. Section 60I of the Family Law Act 1975 mandates that parties must make a genuine attempt to resolve their disputes about children’s matters through Family Dispute Resolution (FDR). This requirement reflects the court’s focus on the best interests of children and its attempts to direct people away from litigation in family matters, thereby reducing the emotional and financial stress on the parties.

Parties who are unable or unwilling to resolve their family law matter in mediation are required to obtain a Section 60I certificate before they can file for parenting orders in the court.  There are five distinct types of Section 60I certificates:

1. Non-Attendance Certificate (where one party failed to attend the mediation)
2. Inappropriate for FDR Certificate (where the mediator deemed the circumstances inappropriate for mediation because of power imbalances between the parties or a history of family or domestic violence)
3. Genuine Effort Certificate (where both parties attended and made a genuine effort to resolve their issues)
4. No Genuine Effort Certificate (where both parties attended, but at least one party did not make a genuine effort to resolve the issues), or
5. No Resolution Certificate (the parties attended mediation but could not reach an agreement).

Section 60I certificates must be issued by an accredited FDR practitioner. Even if someone is unable to secure the cooperation of the other party, they still need to obtain a section 60I certificate before applying for parenting orders.  

Exceptions to requirement to mediate

There are a few exceptions to the requirement to attend mediation. For instance, an exception may apply where:

• the application is for an order that has the consent of all parties;
• the application is in response to a matter that is already before the court;
• the applicant has already attended mediation on the matter in the last 12 months;
• the matter is urgent (for instance, recovery orders for children);
• there is a significant risk to safety, because of a history of child abuse or domestic violence (although in most cases the mediation can be conducted in a way to protect the physical safety of all parties);
• there is an intervention order in place that prevents contact between the parties and there is a “no exception” clause;
• a party cannot participate in mediation effectively because of physical, mental or psychological incapacity; or
• the applicant does not know where their former partner is located and cannot contact them.

What about property matters?

Although mediation is not mandatory in property matters, the family law system does strongly encourage all parties to pursue settlement through mediation before litigation. As with parenting matters, however, there is little point in mediating property matters if there is no prospect of reaching a fair negotiated outcome. Mediation is also usually not an appropriate method in property matters if one or both parties are bankrupt, or there is urgency because assets may be destroyed, lost or sold.

Mediation is not always an appropriate option in family law matters. Certainly, mediation is not suitable if there is no prospect of successfully negotiating an agreed outcome. It is best to consult with a family lawyer if you are unsure whether you must attend mediation for your family law matter. For more information about mediation and court proceedings in general, please get in touch with Go To Court on 1300 636 846.