mediation & dfsv
Mediation has long been recognised as a valuable tool in resolving family disputes. Unlike litigation, which often imposes adversarial outcomes on parties in a winner-versus-loser framework, mediation can provide a collaborative, cost-effective, and empowering space for families to reach their own solutions. But a critical and often confronting question remains: is it appropriate to mediate matters involving family violence?
The answer is not simple. The presence of family violence introduces unique risks that challenge the very foundation of mediation, self-determination, neutrality, and empowerment. In this blog, I explore the ethical and practical dimensions of mediating family violence cases, considering both the potential benefits and serious dangers, while reflecting on how Australia’s legal framework attempts to balance these competing realities.
Family violence extends beyond physical harm. It encompasses emotional, psychological, financial, and social abuse, forms of control that are just as damaging as physical violence. According to the Australian Bureau of Statistics, one in four women and one in eight men have experienced violence by an intimate partner or family member, and 1.6 million women have experienced economic abuse.
In mediation, these dynamics matter. Violence and coercion do not always end with separation; in fact, post-separation is often the most dangerous period for victim-survivors. Power imbalances born from violence can make it difficult, if not impossible, for a victim to negotiate freely and safely.
Mediation is grounded in principles of neutrality and party self-determination. Yet, when family violence is present, can outcomes ever truly be self-determined? Victims may agree to unsafe arrangements out of fear, intimidation, or a history of coercive control. Mediators have a duty of care to ensure safety, but this duty collides with the ethical expectation of neutrality. As scholars like Rachel Field note, mediators cannot claim neutrality while simultaneously intervening to correct entrenched power imbalances, it is not a level playing field. This raises serious questions about whether mediation, in its traditional form, is ever appropriate where violence is present.
Despite the risks, some argue mediation can be beneficial if conducted safely and with proper safeguards. Mediation may:
Empower survivors to have a voice in decisions affecting their children.
Provide structured communication in a controlled environment, with professional oversight.
Offer flexibility to create tailored solutions that courts may not provide.
Reduce retraumatisation from adversarial litigation, if safety measures are strong.
Best practice models, such as shuttle mediation (where parties remain in separate rooms) or telephone dispute resolution, can minimise risk and limit opportunities for direct intimidation.
Still, the risks cannot be understated. Key challenges include:
Re-victimisation: Mediation may provide perpetrators with another forum to exert control.
Safety concerns: Victims may feel unsafe disclosing violence during intake, fearing exclusion from the process.
Power imbalances: No amount of process intervention can undo years of coercion and control.
Access to justice gaps: Many victims cannot afford litigation, do not qualify for legal aid, and may feel forced into mediation despite risks.
Ultimately, mediation that ignores or minimises the dynamics of violence risks producing unjust, unsafe outcomes.
The Family Law Act 1975 (Cth) requires parties in parenting disputes to attempt Family Dispute Resolution (FDR) before applying to court (s 60I). Importantly, exemptions exist for cases involving family violence, urgency, or child abuse.
Family Dispute Resolution Practitioners (FDRPs) must screen for violence and may issue certificates declaring mediation inappropriate. Yet, in practice, many survivors still enter mediation, sometimes because they feel it is their only realistic option, or because they want to avoid the adversarial court system.
The law places the best interests of the child at the centre of all discussions, but this principle can be undermined if the process itself exposes victims or children to further harm. If mediation proceeds in cases involving family violence, strong safeguards are essential:
Rigorous screening and risk assessment at intake.
Safety planning in collaboration with support services.
Shuttle or remote mediation to minimise direct contact.
Specialised training for mediators in family violence dynamics.
Access to legal advice so victims can reality-check proposals.
These strategies cannot eliminate all risks, but they can mitigate some of the dangers where mediation is unavoidable.
Mediators, lawyers, and support services each have a critical role to play:
Mediators must be vigilant in identifying coercion and prioritising safety over neutrality.
Lawyers can empower clients with knowledge of their rights and realistic outcomes.
Support services can provide emotional, practical, and safety assistance throughout the process.
Collaboration across these professions ensures a more holistic response to family violence within mediation. So, is it appropriate to mediate matters involving family violence?
The answer is: sometimes, but only with extreme caution. Mediation can offer empowerment and flexible solutions, but without safeguards it risks perpetuating injustice and exposing survivors to further harm. The appropriateness of mediation in such cases depends on careful screening, robust protections, and the recognition that sometimes, the courtroom, not the mediation room, is the only safe and just forum.
Moving forward, Australia must continue to refine its legal framework, strengthen protections, and ensure that survivors of family violence are not forced into processes that compromise their safety. Mediation can never be a one-size-fits-all solution, and in the context of family violence, nuance is not optional, it is essential.
Resources:
1800RESPECT - 1800 737 732
Men’s Referral Service - 1800 766 491
MensLine Australia - 1300 789 978
Lifeline - 13 11 14
Kids Help Line - 1800 55 1800
13 Yarn - 13 92 76
If it is an emergency, please call 000.
