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.

Ways to feel safer

 

FDR and Mediation services have ways to make you feel safer.

I only got there a couple of minutes beforehand because I was really frightened that he might have been in the waiting room. (Sophie)

Separate sessions

The mediation service can organise a separate intake session, where you can talk to the mediator alone before attending the mediation.

Support

The mediation service should support you to talk about:

  • your experiences of violence or abuse, and
  • how these might affect your ability to mediate or the agreements you consider making.

Shuttle mediation

Mediation with you and your partner in separate rooms. This may help you feel safer.

Co-mediation

Mediation where both a male and female mediator run the session. This may help you feel safer.

Help with safety arrangements

The mediation service should be able to provide separate waiting areas or separate entry and exit points to the building.

Contacting the mediation service

When you first contact the mediation service, there are a number of things you may want to consider asking about.

Some mediation services have more awareness than others about dealing with clients experiencing domestic violence. You should be able to expect that a service can provide the following, but this may not always be the case.

Ask about the process

  • What will happen in the session?
  • What happens with any agreements made?
  • If and how your children can be involved (if that’s what you wish)
  • Can they send you information like examples of parenting plans, information about family law, Centrelink etc?
  • Complaint mechanisms?
  • What you can do if you feel that the mediator treats you unfairly or seems biased?

Tell the mediation service about the abuse you have experienced.

As discussed above, it is important to tell the service about your experiences of abuse, and to find out how they can assist you with this.

Ask for a separate intake session.

Most services provide an ‘intake’ session before the actual mediation and negotiation occurs.

At many mediation services, the intake session is done jointly with you and your ex-partner present. In this session you both discuss the background to the dispute, the issues you wish to cover in mediation, and anything that you feel may affect the mediation process. During a joint session, the mediators will speak to you together and also talk to you privately to check how you are feeling about the session and to discuss anything that you don’t want to say in the joint session.

You can, however, request your own separate intake appointment with the mediator. This can give you more time to privately discuss your experiences of abuse or violence, and how you believe they might affect your ability to participate in mediation. You can also discuss the kinds of outcomes you want to consider (for example, what safety measures are required in a parenting plan).

The [individual] session was limited to an hour and… I kind of blurted out part of my story. The time constraint [was difficult] – I had to … be able to use that time in order to take this first step of the process. I couldn’t explain all of what I had experienced. But it was important because I knew that my ex-partner could portray himself as anything that he wanted [to]. (Annie)

If you feel like you haven’t had enough time to understand the process or to discuss your fears about the mediation session or the abuse, let the mediator know this.

Ask about practical arrangements to protect your safety

Many women say that they were nervous about seeing their ex-partners before or after the actual mediation sessions. You could ask if the service can provide separate waiting areas so you don’t have to wait in the same room as your ex-partner.

Ask:

  • Can they arrange separate arrival times and departures?
  • Where can you park your car?
  • Do they offer ‘shuttle’ mediation (where you and your ex-partner are in separate rooms) rather than joint mediation or ‘co-mediation’ (where both a male and a female mediator run the session)
  • Is there a separate waiting area or separate entry/exit points to the building?

Co-mediation can be helpful for victims of violence. Having a male and female mediator can make it easier for them to pay attention to communication patterns and issues of power in the sessions. For example, ‘Annie’ commented that having a male and a female mediator there was helpful for her:

I think he [ex-partner] had to check in on himself more… He couldn’t turn around [and] say one thing to me and a different thing to someone else. I think it affected him that there was another woman in the room, a woman in the position of real power… so I think that was really good. (Annie)

What to look for in a mediator

A mediator should:

  • take domestic violence seriously and ask about experiences of violence, including non-physical forms of abuse or harassment
  • help you consider the possible impact of abuse on the mediation process
  • offer you a separate time to discuss any concerns before, during and after the mediation sessions
  • set ground rules at the start of the session for what forms of communication and behaviour are acceptable and what are not (for example, no put-downs, no intimidating behaviour etc)
  • work out a signal that you can use to indicate to them if you are feeling threatened or need a break
  • check with you privately during the mediation session to find out how you are going
  • control any abusive behaviour in the mediation session and /or assist you to deal with it, and
  • help you to deal with any harassment or intimidation that occurs outside of the mediation session itself.

Safe agreements

If you reach an agreement on arrangements for your children, this can be recorded as a ‘parenting plan‘.

A parenting plan must be in writing, dated and signed by both parents. Your agreement or parenting plan can include mechanisms to change arrangements and resolve disagreements. Parenting plans can be renegotiated over time, if necessary.

Mediation gives you an opportunity to make arrangements that will keep you and your children safe.

Only make agreements that you believe will be safe for you and your kids.

Prepare yourself for the mediation

Get legal advice before and after the mediation

Get some legal advice and think about … what your rights are both in terms of property and children matters. (Lesley)

Getting legal advice is important. It can help you to be clear about family and property law and how it relates to you, as these matters may be discussed during the mediation session.

In some cases, lawyers may attend mediation sessions. But in most forms of mediation, lawyers cannot attend mediation sessions. So it is important to get advice about your legal rights before the session.

When you talk to a lawyer make sure she/he understands what you want.

Any agreement you reach in mediation is not legally binding until a court has made an order. In cases where there is violence or abuse and you are developing parenting plans in mediation, you may want to lodge these with the Family Court to provide you with some formal support if the agreement is breached.

Work out your wishes and know your bottom line

Think about what you want to achieve in mediation. Be clear about what you want to discuss and what you don’t want to discuss.

I’d worked out before what was worth fighting.(Kate)

I had done some preparing of what I wanted from the mediation process – in fact I was really clear about what I wanted from the mediation process. (Annie)

Some women found it helpful to write points down:

[If] you have written it down then you can actually remember the structure of the sentence and the ideas and it’s not like you having to drag it out of some emotional mess … you can remember the dot points you made for yourself. (Lesley)

You could discuss what you want with your lawyer, counsellor or other support person.

We worked out what was my bottom line and how to stay on course. (Kate)

Talk to mediator beforehand to be ready for the session

It’s important that both you and the mediator are clear about what steps to take if at any point you become distressed, or feel unsafe.

Find and prepare any documents

These may include bank statements, outstanding loans, superannuation, school holiday calenders. Bring these to the session.

Find support

I didn’t realise that the mediation session would tap into the ongoing feelings about having no rights, no identity, no status, being undeserving, needing to be punished for leaving the marriage… (Kate)

I had a friend to drive me in because I was too shaken to drive. (Sophie)

Mediation can be stressful and difficult. It can help to have a friend come with you or meet you after the mediation session. It is possible to have a friend to provide emotional support for you during the mediation session, but this will be allowed only if your ex-partner agrees to it.

Talking with a counsellor can help you to prepare for what might be distressing about the process.

One woman had a counselling session before the mediation and also saw a domestic violence service for support:

I actually had a very good session with my therapist in the morning preparing me for all the possible things. I also, in between the first mediation session – the single one and the joint one – I did see a domestic violence outreach worker for one appointment and that was really useful too. (Kate)

You need to do what is right for you – if you feel you do not need any support then that’s fine.

I didn’t want any of my friends there – I have been through hell, I didn’t want them to see me upset. (Sue)

It has helped some women to think or talk to a counsellor/friend about what made them fearful and in what ways ex-partners used to put them down.

She enlightened me to the fact that it wasn’t my fault and that my husband was a controlling person. (Clare)

Things to remember

  • You have a right to speak, to be respected, to be heard, and to ask for what you would like.
  • You have the right to have a break.
  • If you feel pressured or pushed to reach agreement, you have a right to end the session. When your partner has been abusive in the past it’s particularly important that you have time to reflect on any agreements and consider their suitability and safety before you agree. This is a good time to get more legal advice.

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