Victims of family violence—how to engage in mediation if you have suffered domestic abuse
Dispute resolution is no longer optional in the family law system. In fact, most cases will require litigants to engage in mediation prior to the commencement of court proceedings, and if unsuccessful, your case will again be referred to mediation by a Registrar of the Court.
While some people just don’t like the idea of attempting to mediate with their former partner about sensitive topics, such as dividing matrimonial assets and parenting arrangements for children, others have genuine concerns to engage in such a process because they are victims of family violence.
The appropriateness of victims of family violence attending mediation has been historically questioned. The concerns voiced for victims of family violence are that they have an “unequal bargaining power”, that victims are subjected to further trauma by engaging in the dispute resolution process, and that perpetrators of family violence can use the process to effectively “bully” the victim so that they receive a favourable outcome. While there is merit to this argument, the reality is the alternative to dispute resolution is litigation.
You therefore need to consider whether prolonged litigation is a better alternative to dispute resolution, taking into account that:
1. Litigation is uncertain and outcomes which can be seen as unfavourable to a victim of family violence can be detrimental and possibly further validate their feelings of a lack of self-worth;
2. The process of litigation itself can allow perpetrators to continue behaviours constituting as family violence, making engagement with the process for victims traumatic;
3. Litigation takes the power of decision making from the victim to a third party, being a judicial officer, and accordingly, victims are not afforded the opportunity to make decisions about their finances or their children, which in some ways may mimic their experience as a victim of family violence.
Feeling Safe During Mediation
Given the benefits of engaging in dispute resolution, how can victims of family violence feel safe to engage in the process? Here are a few tips:
1. Choosing the right mediator for your case - Choosing a mediator that effectively screens for family violence prior to the victim engaging in the dispute resolution process. It is therefore useful to choose a mediator that conducts a pre-mediation conference with the purpose of an assessment as to the appropriateness of family dispute resolution.
2. Raising your concerns early – If you feel comfortable to do so, it is important that you raise your concerns with your lawyer and the mediator. This can include concerns of physical safety, psychological abuse and/or financial control. If you have chosen the right lawyer for you, they should be able to screen for indictors of family violence and advise the mediator accordingly. Choosing the right lawyer.
3. Proposing shuttle mediation or support people be present – You can always tell the mediator you are not comfortable seeing your former partner and that you prefer the mediation occur electronically by shuttle. You can also request a support person be present bring a support person, although talk to your lawyer about confidentiality. It is best to provide the name of the support person to the mediator at the pre-mediation conference so they can determine the appropriateness of the person being present at the mediation.
4. Thinking twice about your mediation paper – Your lawyer will likely prepare a mediation paper on your behalf for the purpose of the mediation. While mediation papers are useful for a mediator to understand the intricacies of a case, be mindful of what you write. There will no doubt be historical facts you assert which are relevant to determining facts in dispute, however you need to balance the utility in raising that fact in writing in a confidential mediation paper against the harm any inflammatory comments can make to the effectiveness of resolving the dispute. Remember you always have the ability to advise the mediator of any concerns you have in a confidential session with your lawyer.
5. Preparation – Take the time to ask your lawyer about the mediation process as it is different to attending Court. The more information you have about the process, the better equipped you will be to engage in the process.
We have extensive experience, both as mediators and as lawyers assisting parties in navigating the mediation process. Please feel free to contact us if you require assistance with your upcoming mediation or require advice to commence the dispute resolution process.