When Mediation Fails: What’s Next in Family Law Disputes

Published 2 June 2026

Separated couple discussing family law dispute options after mediation in NSW

Key Takeaways

Mediation is often the first step in resolving family law disputes, but it does not always lead to agreement.
If mediation fails, options include further negotiation, arbitration, or court proceedings.
A certificate from mediation is usually required before applying to court.
The court focuses on achieving a fair outcome, with the child’s best interests as the top priority in parenting matters.
Early legal advice can help you choose the most effective path forward.

Why Mediation Is the First Step

In family law matters, mediation, also known as family dispute resolution, is encouraged as a way to resolve issues without going to court.

Mediation allows parties to:

Discuss concerns in a structured environment
Explore practical solutions
Reduce legal costs and delays

In many cases, mediation leads to agreement. However, where communication breaks down or positions are too far apart, further steps may be necessary.

What Happens When Mediation Fails?

If mediation does not result in an agreement, you are not out of options. The next steps depend on the nature of the dispute, whether it involves parenting, property, or both.

In most parenting matters, you will receive a Section 60I Certificate, which confirms that mediation was attempted. This certificate is generally required before you can apply to the court.

Option 1: Continued Negotiation

Even after mediation ends, many disputes are resolved through ongoing negotiation.

This may involve:

Solicitors communicating on your behalf
Refining proposals based on feedback
Narrowing the issues in dispute

Negotiation can be less formal than mediation and allows for more flexibility in reaching a practical outcome.

Option 2: Family Law Arbitration

For property and financial disputes, arbitration is an alternative to court.

Arbitration involves:

Appointing an independent arbitrator, usually an experienced family lawyer or barrister
Presenting evidence and arguments in a private setting
Receiving a binding decision

Benefits of arbitration include:

Faster resolution than court proceedings
Greater privacy
More control over timing and process

However, arbitration is generally limited to financial matters and is not typically used for parenting disputes.

Option 3: Applying to the Court

If agreement cannot be reached, the next step is to apply to the Federal Circuit and Family Court of Australia.

Court proceedings may be necessary when:

There are serious disputes about children’s living arrangements
One party refuses to engage in negotiation
There are urgent concerns about safety or welfare
Complex financial issues require judicial determination

Once proceedings begin, the court will manage the case through directions hearings, evidence gathering, and, if needed, a final hearing.

How the Court Decides

The court’s approach depends on the type of dispute.

Parenting matters

The court’s primary consideration is the best interests of the child. This includes:

The child’s relationship with each parent
The need to protect the child from harm
The ability of each parent to provide for the child’s needs

Property matters

The court considers:

Contributions made by each party
Future needs, including income and care responsibilities
What outcome is just and equitable

You may find it helpful to read our guide on de facto property settlements in NSW:
https://www.berrymanpartners.com.au/blog/understanding-de-facto-property-settlements-in-nsw/

Costs and Time Considerations

Court proceedings can be:

Time-consuming, often taking months or longer
More expensive than negotiation or mediation
Emotionally demanding for all involved

Because of this, parties are encouraged to continue negotiating even after proceedings have started. Many matters still settle before reaching a final hearing.