Mediation and family violence

Do you have to attend mediation if there is a protection order in place? This is a question we are often asked because parties feel that if there has been family violence, at whatever level, then they do not need to attend mediation or mediation will be more difficult.

If there are allegations of family violence between parties, then technically this is one of the exemptions provided for under the Family Law Act, allowing parties to be excused from participating in mediation. However, having a protection order in place or having experienced certain levels of family violence does not preclude you from participating in mediation. It will ultimately depend on the Family Dispute Resolution Practitioner assessing your matter and making a decision about whether you can still effectively participate in mediation in a safe manner.

The level of family violence that you have experienced will impact whether you must attend family dispute resolution. The more serious the allegation or act of family violence and the impact that the family violence has had on you, the more likely that the mediator may assess that it is not appropriate for you to participate in family dispute resolution.

In most circumstances, however, mechanisms can be put in place to provide a safe place for the parties to have negotiations for their family law matter. The most effective way to facilitate a mediation in circumstances where there have been allegations of family violence is via a shuttle conference. This means that there is no reason for the parties to come into contact at all. There would be no joint session and the mediator will simply move between each room, ensuring that the parties do not come into contact with each other.

If there are allegations or acts of family violence in your matter, you may also consider having a lawyer present. A lawyer can provide you with objective advice in circumstances where you may be significantly impacted by any feelings you have about the other party, given the allegations or act of family violence.

Whilst having a support person present can assist, more often than not that support person won’t be able to provide you with the objective advice you need full. Whilst well-meaning, their advice is often subjective and designed to support you rather than assist you strategically to resolve your matter.

It is a rare matter in which a certificate would issue given an allegation of family violence. However, it does occur, particularly if an assessment is made that a party will not be able to effectively participate in mediation. If you are unsure about whether your matter is appropriate for mediation, you should seek independent legal advice.