Mediation and Family Violence: Is Mediation Ever Appropriate If There Has Been Family Violence?

by Zoe Durand on October 19, 2016

Zoe Durand

Usually, to commence Court proceedings in relation to parenting matters, parties require a section 60I certificate. However, if family violence has occurred parties may be exempt from mediation.

However just because parties do not have to attend mediation prior to Court proceedings, does this mean that if there has been family violence parties cannot mediate? Is it ever appropriate or possible to attend mediation even if there has been family violence?

In short, mediation is not mandatory if there has been or is a risk of family violence. However if both parties wish to mediate the parties can proceed, although the Family Dispute Resolution Practitioner can decline to mediate.

Under the Family Law Regulations 1984 the mediator would need to asses if the client’s ability to negotiate freely is affected by:

  • family violence
  • safety
  • unequal bargaining power
  • risk a child may suffer abuse
  • emotional, psychological and physical health
  • other matters

The key issue will usually be determining if the clients are able to attend safely and if they have capacity to participate and make consensual decisions.

It is possible that when there is family violence mediation would make a bad situation worse due to:

  • One party engaging in intimidation.
  • Bargaining power being prevented by violence.
  • The victim may collaborate with the perpetrator, due to threats they have made.
  • Mediation lacks safeguards litigation has to protect victims.

However some argue it is not automatic that family violence precludes mediation as for example Karen Wilcox argues “exemptions from mediation…may in fact be exposing victims and their children to greater potential harm.” (Karen Wilcox, Family law and family violence research to practice.) Some commentators argue that the power imbalance only be amplified in the Court process. However others are of the view that the Court process offers victims of family violence more safeguards.


If mediation proceeds when family violence has occurred some safeguards can be considered, such as:

  • Having a safety plan, for example shuttle mediation where the parties are in different rooms, separate waiting areas, varied arrival and departure times, safe entry and exit points.
  • A perpetrator plan such as cooling off mechanisms.
  • Ground rules for behaviour and managing aggressive behaviour.
  • Frequent private sessions to check in with victim.
  • Monitoring safety throughout, continuously asses comfort levels and offering frequent breaks.
  • Discontinuing the session if behaviours become unsafe.
  • Explaining to the parties that they do not have to reach agreement (to reduce pressure on victim).
  • Having a support person present (provided the other party agrees.)
  • Having a lawyer present.

For victims of domestic violence the difficulty is neutrality can fail to validate their lived experiences of violence. However arguably validating such experiences creates bias. Mediation in cases of family violence raises difficult and complex questions. Is remaining strictly neutral replicating power imbalances? Or is validating/assisting the victim bias? Perhaps Karen Kitchener’s concept of “expanded neutrality” is appropriate, as it addresses specific needs of individual clients differently for higher principles, such as to do no harm (Karen S Kitchener, “Intuition, Critical Evaluation and ethical principles” (1984) The Counselling psychologist, 43 at 47). Or does this mean the mediator is impartial, but not neutral?

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