Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs
Mediation in Family Law matters is also referred to as Family Dispute Resolution (“FDR”). Before a person can make an application in the court for orders about children, there has to have been an attempt to resolve the dispute, by attending an FDR process (a mediation).
If you are invited to attend an FDR process, and you not wish to attend mediation, that is your choice. However, you should be aware that if a person fails to engage in an FDR requested by the other party, a certificate (called a s60I certificate) will be issued stating:
“The person did not attend FDR due to the refusal or failure of the other person or people to attend”.
If proceedings end up being filed in the court, the Court will be able to take into account a party’s refusal to attend FDR if there is an application for costs. It is possible that the Court will make an order for the other party’s costs to be paid by the person who refused to attend mediation; if the refusal to attend mediation increased the costs of the other party. In other words, they had to come to court because the other person in the dispute refused to try and resolve the dispute.
It is always a good idea to get some legal advice about the consequences of refusing to engage in an FDR process.
In most cases, mediation in family law matters is worth a try. There will be some cases where it isn’t appropriate, in which case the s60I certificate will reflect that the Mediator made the decision not to proceed. In that case, a person wouldn’t be at risk of a costs order.
Nardine Collier is a Nationally Accredited Mediator and has been mediating Family Law disputes for over 20 years. She is a Family Dispute Resolution Practitioner, a Family Law Arbitrator, a panel Mediator for various Australia wide organisations and for courts and tribunals. Nardine regularly mediates at Legal Aid conferences in Family Law, in Cairns and Alice Springs. She is also the Cairns Representative of the Queensland Chapter of the Resolution Institute of Australia.