Family Law FAQs
February 2012
What does the pre-mediation process involve before parties to a family dispute undertake mediation?Before parties commence with the mediation process, private family mediators, or other family mediation services, usually undertake a pre-mediation process assessment in regards to matters that fall under the auspices of the Family Law Act.
The assessment is carried out to make sure that the parties are intent on engaging positively with the mediation process. Furthermore, mediators want to ensure that both parties will be safe from harm and will make a further assessment on whether or not mediation is suitable for the parties involved.
When making a pre-mediation assessment, mediators can take into account some of the following when judging the suitability of the parties to engage with the family dispute resolution process:
• any fears or risk of violence between the parties
• allegations of child abuse
• the bargaining power between the parties
• mental illness or intellectual disabilities which may affect the process
• an unequivocal statement by one of the parties that they will not participate in the process
• bad faith bargaining
• threats of child abduction or violence
• the capacity of the parties to make a ‘genuine effort’ in mediation
• the capacity of both parties to safely negotiate with one another
• any relevant court orders.
Ultimately, the pre-mediation process is carried out to ensure that the parties will enter into mediation in good faith, with a willingness to positively engage with one another. Additionally, the pre-mediation process will also give a mediator the opportunity to make an assessment on the power dynamic within the relationship, whilst also ensuring that a certain level of trust is established between the parties, as well as the mediator.
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