If there is family violence, the parties shall be exempted from mediation

When it comes to commencing court proceedings for matters related to parenting, the parties involved are required to obtain a section 60I certificate. However, if there is family violence, the parties shall be exempted from mediation.

It’s important to keep in mind that just because parties don’t need to attend mediation before Court proceedings, mediation is still an option in the event of family violence.

While you may think attending mediation is not possible or appropriate as it is not mandatory if there is or has been a risk of family violence, the fact is that both parties can proceed with mediation if they wish to.

The Family Dispute Resolution Practitioner, though, can choose to decline the process of mediation if it seems fit. According to the Family Law Regulations of 1984, the mediator must evaluate if the client’s ability to negotiate directly and freely is affected by any one or a combination of the following factors:

• Unequal bargaining power
• Physical, emotional and psychological health
• Family violence
• Risk of a child suffering abuse
• Safety
• Other matters

The main issue for the mediator will usually be to determine if the clients can attend safely and, not to mention if they can participate in the mediation process and make consensual decisions.

Nonetheless, in the event of family violence, there is a possibility that mediation would make a bad situation even worse and cause more problems down the road, due to:

• Mediation does not include safeguards for protecting the victims
• One party trying to intimidate and sow fear
• The victim unwillingly collaborating with the perpetrator because of the threats they have made
• Eliminating bargaining power through violence

Some, however, argue that family violence doesn’t automatically preclude mediation. If the victim is exempted from mediation, it may end up exposing them as well as their children to much greater potential harm.

Other commentators believe the imbalance of power can only be amplified during the Court proceedings. There is also the view that the victims of family violence can gain more security by going through the Court process.

If the parties decide to proceed with mediation for family violence, there are a number of safeguards you can consider, including:

• Having a lawyer and support person present
• Having a safety plan in place (for instance, shuttle mediation where the assisting parties involved in the conflict are kept in separate rooms)
• Making it clear to the parties they aren’t bound to reach an agreement (to reduce the pressure on the victim)
• Having a perpetrator plan to prevent them from frightening the victim
• Establishing ground rules for behaviour
• Discontinuing the mediation session if the behaviour of one or both parties is unstable
• Monitoring safety levels throughout the process and continuously assessing the comfort level of both parties
• Having frequent private sessions with the victim to check on them

So, while mediation in the event of family violence does raise complex and difficult questions, at the same time, it can prove an effective means of finding solutions if there has been violence at home!