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Preparing for mediation

Preparing for mediation

Preparing for mediation

Mediation is a process set up to help separating couples sort out arrangements for children, like:

  • where your kids will live
  • who they will live with, and
  • how much time they will spend with each parent.

Mediation is now usually called Family Dispute Resolution or FDR.

It can be a fast way of reaching an agreement without expensive legal and court fees. It is also used to sort out money and property issues.

 

What is mediation NOT about?

Mediation is not usually about trying to reconcile your relationship and get back together (unless you both agree that this can be discussed during the session).

 

Who runs it?

The “mediator” runs the process of mediation. Their role is to help people have a conversation with each other in a safe and respectful environment. The mediator does not give legal advice or tell you what to do.

In Victoria, mediation happens at a Family Relationships Centre or at Legal Aid. If you are in a remote area, you may access an FDR services over the phone.

 

Is it compulsory?

Yes, if you’re going to family law court.

If you’re going to family law court, you need to give a certificate from a Family Relationships Centre to confirm that you and your former partner have attended mediation.

This is to show that you’ve tried to resolve your issues before starting legal action in the court.

 

But, there are exceptions  – like family violence.

You don’t have to do mediation if:

  • your matter is urgent
  • you are applying for Consent Orders
  • there has been, or there is a risk of, family violence or child abuse
  • one of you can’t participate effectively (eg due to illness), or
  • one of you has contravened and shown a serious disregard to a court order made in the last 12 months.

If you’re in one of these situations, get legal advice on what to do.

 

Making agreements in mediation

You and your ex-partner might not reach agreement on all of the issues discussed in the mediation session, or it may take a few sessions to reach agreement.

You don’t have to reach an agreement.

If you are unhappy with any agreement that is being negotiated, or feel that you or your children might not be safe as a result of the arrangements that are being suggested, then you do not have to agree.

 

What if there’s been family violence?

FDR (mediation) might not go ahead if the mediator assesses that:

  • you are unable to participate because of the violence, or
  • that the mediation will subject you or your children to violence.

If this is the case, the mediator can issue a certificate so you can go to court and have your dispute sorted out there.

 

Going ahead with mediation

If you have experienced abuse or violence from your ex-partner, you may still choose to go through FDR, but it is very important that you feel safe and are safe before, during and after mediation. If you make any agreements with your ex-partner, it’s important that these agreements are all safe for you and your kids.

I was completely unprepared because I didn’t know how that mediation would go along [or] what protective mechanisms were in place for me. (Sophie)

 

How domestic violence can affect your ability to mediate

If your ex-partner has been abusive or violent towards you, participating in mediation can potentially be difficult and stressful.

The process of mediation presumes that both partners can speak their minds freely and confidently.

But if you have been abused, it can be hard to speak up if you feel intimidated, pressured or afraid because of your partner’s abuse.

Because of the abuse [you can] feel in a position of having to ask for something rather than having an entitlement [to it] … that is a flow on from abuse and it does affect the mediation process. (Kate) 

It can be difficult to let services know that you have been living with family violence or abuse, but it is important that you do so if you can. Remember too that emotional abuse (for example someone putting you down, manipulating you, controlling your behaviour or threatening you) can be just as traumatic and difficult to deal with as physical violence, so it is important to tell the mediator about these experiences.

I did say that although he never hit me I was emotionally terrified of him… My ex-husband can be very charming, so I guess I was pretty scared that, even if I said anything [about the abuse]…when [the mediator] would meet [my-ex-husband] then my story would be negated. So it’s been very difficult … to trust whether someone’s going to believe me anyway.

Mediators have to have some level of neutrality, but they need to also know what that costs the person. I think for mediators to actually understand some of the effects of abuse on women, how incredibly difficult it is just to even talk about it, to name it; that to be visible is so dangerous. To even understand the triggering process that can take you back into an emotional timeless abused state [which] is not a very easy place to be [in] when you’re trying to answer questions. (Kate)

 

What if you feel unsafe?

It’s important that you feel safe, and are safe before, during and after FDR (mediation).

If you have concerns about your safety or the safety of your children, you should tell the staff at the FDR service as soon as possible.
This may mean that FDR stops or does not proceed.

There is no requirement to undertake FDR if there has been family violence or child abuse.