When mediation is not suitable – cases which don’t fit the mold

Written by Will Story for the Family Advocate, Spring 2022 

The question of whether a matter is suitable for mediation is often grappled with by those working in the family justice system. Family Dispute Resolution (FDR) mediation is mandatory for families seeking to air their parenting disputes in Court unless the matter is deemed “inappropriate” for mediation. What is deemed appropriate often depends on the judgment call of one individual. Whether it be an FDR co-ordinator, mediator, Family Court registrar, Kaiārahi, Family Lawyer or Family Court Judge, all and any of these individuals can and do change the course of one family’s journey through the family justice system.

Within the FDR space, we most often see exemptions issued because one of the parents is unwilling to participate or has refused to engage in mediation. Based on their past experiences, parties expect it will be a waste of time and money. These cases are a shame, as it is a lost opportunity to learn to communicate differently and develop a more functional co-parenting relationship. Do we exempt too quickly? I think that there is more that we can do to support these parties to understand what supports are available to them, what to expect, and what’s possible moving forward as they will be in each other’s lives for many years to come.

In other instances, a decision is made that a case is unsuitable as there is evidence of family violence or some other situation which quickly leads one to deem participation in FDR inappropriate. In my opinion, too often families are exempted from participating in FDR. It is hard to argue otherwise looking at the numbers of Court cases versus FDR cases on an annual basis. The existence of some form of family violence or identification of a power imbalance in the relationship commonly results in lawyers advising their clients that the matter is not appropriate for mediation. In some instances, those matters are not suited for mediation. But there are others where exemptions are treated as the “golden ticket”. And it is often these cases where families miss the opportunity to take ownership of their decisions, build bridges and behave as mature adults.

In this article, I discuss a couple of cases which very nearly missed the mediation boat. Cases which were very close to being rendered inappropriate for mediation, but cases which ultimately reached appropriate and enduring resolutions through mediation. If there is a learning from this, it is that a matter should not be assumed inappropriate for mediation just because certain indicators exist, such as a history of family violence. With the appropriate safeguards in place, mediation can and does offer a most appropriate process.

Consider this further. If matters are deemed inappropriate for mediation, the obvious inference is that they are “appropriate” for Court. I have no issue with the ability or expertise of our wise and able judiciary to impose decisions on disputed matters for families where power and control and/or family violence dynamics exist. But I do find intriguing the lack of recognition given to the fact that when the Court file closes the co-parenting relationship between the parties, power and control and/or family violence dynamics or no such dynamics, must survive in some form until the children are at least 18 years old. While the parties may have successfully navigated the Court process without having to have direct dialogue with one another (having Counsel as their mouthpiece), these circumstances are artificial and do not survive the constructs of the adversarial Court process.

We have been involved in a number of FDR mediations where a parent was in prison. On paper, these are cases that could easily have been exempted.  One could easily assume that the parent in prison could not participate in the process, or due to their convictions, once again conclude that FDR was unsuitable. In cases like this, we ensure the FDR request goes through a rigorous assessment. We are vigilant about safety and signs of abuse. If we decide the case is suitable to proceed to mediation, we appoint a senior mediator to work with the parents and the prison to conduct the mediation process safely.

When a person goes to prison, they can obviously no longer be an active parent in the day to day care sense. However, this does not mean that they give up their rights and responsibilities as parent. We have mediated cases where a parent in prison has wanted to be involved in making the big parenting decisions for their child, where plans for the financial support and care of the children were needed to be worked through with wider whānau, where the parents needed to create a plan for how their children would stay in contact during their time incarcerated, and how they would reintegrate into their child’s life upon release. These were challenging conversations but ones which really benefited from independent assistance and ultimately were extremely rewarding for all involved. Another situation where cases may be considered for exemption is where there are mental health issues. The reality is that nearly half the population will meet the criteria for a mental illness diagnosis at some stage during their lives, and one in five of us will experience mental health issues in any given year. If the presence or a history of mental health or wellbeing concerns were to preclude parties from engaging in FDR, a huge proportion of our population would miss out on the opportunity. Like cases involving parents in prison, the key is undertaking a robust assessment and if suitable, creating a safe process for everyone.

One case which came through FDR involved a father who had lost his job and suffered a major mental health breakdown and depression as a result. Our mediator recognised the need for this parent to have support. They agreed for a close friend to be involved and support him through the process. They also discussed the professional and medical help he was getting, as well as what the mediator could do to help at mediation. The mediator got the father’s permission to discuss some of this with the mother, so that everyone was aware and on board with the process that this mediation would require.

During the joint mediation session, the mother shared her concerns about the father’s ability to cope with the children for a long period and how this could impact on the children. She wanted him to be involved in the children’s lives but wanted it to be safe for everyone. The parents then discussed his mental health and the treatment he was receiving. They made plans for what they would do if he was unable to care for the children because he was having a bad day, or if he needed to bring them home earlier. They also discussed safety and how they both would communicate with each other going forward.  They agreed that he would meet with the children at a family member’s house with another adult family member present. Importantly, the parents were able to explore the potential impact that the father’s depression could have on the care arrangements and come up with realistic, practical and safe alternatives.

The judgment around whether a matter is suitable for mediation is best left to the mediator. Mediation is an art, not a science. Much magic is done in mediation. The FDR provider will best know whether or not the matter is “appropriate” for them to mediate which largely hinges on whether or not he or she has the tools in their toolbelt.


About the author

Will Story BA LLB (will.story@fairwayresolution.com) is an experienced family lawyer (not practising) and Operations Manager of Family Services at Fair Way Resolution Limited.