Navigating the legal complexities of family law can be emotionally and legally challenging, especially when it comes to mediation. Understanding whether the mediation process is compulsory for your specific circumstances and knowing when it might not be appropriate can significantly impact the outcome of your case. This blog post explores the intricacies of compulsory mediation in family law and highlights scenarios where mediation may not be suitable.
When mediation is not appropriate
The benefits of mediation and why mediation works aren’t always applicable to everyone. The goal of family mediation isn’t to work out who is right or wrong or tell people what to do. When you attempt family dispute resolution or mediation, 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 seek legal advice and 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 the mediation process is compulsory for parenting matters, it might not always be appropriate in certain situations. In fact, the Family Law Act provides certain examples of circumstances where it would not be appropriate for mediation to take place. If family law 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 Family Law Court for a parenting order.
Before family dispute resolution services commence, an assessment will be made to see whether a family dispute resolution service is suitable for your situation. It might be suitable to attend family dispute resolution if:
- Someone’s safety is at risk, for example where domestic violence or child abuse is involved. If you have significant family violence evidence or evidence of child 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/ family dispute resolution practitioners think 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
Mediation is not compulsory for property matters, but it is strongly encouraged by both the Court and the family law system. The Family Court can also order conciliation, particularly in cases involving a small property pool. However, there are situations where mediation for property matters may not be appropriate, including:
- Lack of Agreement: If one party does not agree to attend mediation unless it is court-ordered, the process cannot proceed.
- Bankruptcy: If the dispute involves financial issues and either party is bankrupt, mediation may not be suitable.
- Urgency: Urgent cases, such as those where assets might be sold, lost, or destroyed, may not be appropriate for mediation.
Family Violence
In high-conflict situations or cases involving family violence, mediation may not be suitable. However, special arrangements can often be made to ensure the mediation takes place in a safe environment. These measures can include placing parties in separate rooms or conducting the session over the telephone.
Conclusion – When mediation is not appropriate
Deciding whether mediation is suitable for your family law matter depends on the unique circumstances of your case. It is crucial to discuss your situation with an experienced family lawyer who can provide guidance and help you determine the best course of action. While mediation offers numerous benefits, it is not always the right fit for every situation, and understanding when it is not appropriate can save you time, stress, and resources.
For personalised advice and further assistance in understanding the role of mediation in your family law case, consult with a family law professional today.
