When mediation is not appropriate
The benefits of mediation and why mediation works aren’t always applicable to everyone. The goal of mediation isn’t to work out who is right or wrong or tell people what to do, the goal is to achieve a satisfactory outcome via mutual agreement and reach a deal. If there is no chance of success it might be best to discuss with your family lawyer if and when mediation is not appropriate. Depending on the type of mediation in question, different rules and procedures apply.
Mediating Parenting Matters
While mediation is compulsory for parenting matters, it might not always be appropriate in certain situations. If mediation is not appropriate you will be required to get an exemption certificate from a family dispute resolution practitioner before you can apply to the Court for a parenting order.
Before family dispute resolution can commence, an assessment will be made to see whether family dispute resolution is suitable for your situation. It might be suitable:
- If Someone’s safety is at risk, for example where domestic violence or child abuse is involved. If you have evidence of the violence or abuse you can ask the mediator for an exemption certificate.
- You don’t know where your ex is and cannot contact them.
- The case is urgent, for example, location (finding) and recovery (returning) of children orders,
- Your mediator thinks mediation will not be suitable for you.
- There is an intervention order which prevents you from having any contact with the other person with a ‘no exception’ clause.
Mediating Property Matters
While mediation is not compulsory for property matters, the Court encourages mediation and can order conciliation for matters with a small property pool.
In some cases, mediation might not be appropriate if:
- If one person does not agree to attend (unless court ordered)
- Your dispute is about financial issues and you or your partner is bankrupt.
- The case is urgent, for example, assets may be sold, lost or destroyed.
It may also not be appropriate in high conflict or cases where family violence is an issue. However, in most cases, special preparations can be made to make sure the mediation takes place in a safe setting. This includes, placing people in a separate room, or the session can be over the telephone.
Conclusion – When mediation is not appropriate
Whether or not mediation is suitable really depends on your own unique situation and it’s best to discuss it with an experienced family lawyer.