Can you mediate with an IVO in place?

You’re in a relationship where there is a history of Family Violence and you are not sure if you should Mediator or not.

Couples with IVO’s in place, typically involve a parent who wants to mediate and a parent who doesn’t want to mediate.

Often the party who does not want to mediate may feel unsafe or feels they won’t get a fair hearing with their former partner in any form of negotiation.

The other party is often restricted from seeing their children and is wanting to resolve the dispute as quickly as possible to allow access to their children again.

Both parties often feel powerless in the situation and Mediation offers the safe, impartial, confidential space to discuss and resolve issues.

Here are 13 things you should consider:

  1. Most IVO’s have an exception for Counselling and Mediation, so mediation is often possible.
  2. Mediation is a requirement of the Family Law Act, couples are required to attempt Mediation before they can take a dispute to court.
  3. You can request a Shuttle Mediation if you feel unsafe and good Mediation services will proved that for you.
  4. Mediators offer a safe, impartial space for couples to discuss their differences and good Mediators manage their space well.
  5. If Mediation fails or is refused by one parent, the Mediator will issue a 60(I) certificate if requested by the other party, even with an IVO in place.
  6. If your circumstance warrant, for example, if there is extreme violence, drug and or alcohol abuse, your Solicitor can make application to the court on your behalf for an exception from obtaining the certificate.
  7. Using a Solicitor to advocate for you when you have been requested to attend mediation does not resolve anything. Solicitors do not have authority over Mediation, they do not tell Mediators what to do.
  8. If you refuse to attend Mediation, it is entirely up to the Mediator if they issue the 60(I) certificate or not.
  9. Saying you want to use a different mediation service will not necessarily satisfy the Mediator that you are genuine and they will often issue
  10. If you have concerns or are apprehensive, it is always better to at speak with the Mediator to see if they can adequately support you in a Mediation and to discuss your options.
  11. Mediation is by far the best and cheapest option for separating parents and should be your first choice.
  12. Mediators are neutral, not matter which parent makes the initial contact there is no advantage.
  13. If a certificate is issued, it may take several months for your matter to go before a Judge, you could seek Mediation elsewhere in the interim.

What is a 60(I) Certificate?

This is the certificate a Mediator will issue allowing one or both parties to make an application to take their dispute to court.

Saying no or refusing to speak to the Mediator, are there any possible consequences?

  1. By refusing to attend Mediation you will often leave the Mediator with no other choice than to issue the certificate.
  2. If you respond to the letter you receive from a Mediator via your solicitor, again you put the Mediator in a difficult position. Mediators have strict confidentiality requirements and speaking through a third party requires written permission from the person being asked to attend Mediation.
  3. Refusing to speak to the Mediator creates doubt in the mind of the Mediator that you are genuine (very often people use these types of tactics to delay the process).
  4. If you can afford a Solicitor, you can afford Mediation.
  5. Using a solicitor to communicate with the Mediator may result in the Mediator making assumptions about the reasons why you are delaying and if asked they may issue the certificate.
  6. What is often not realised by parents is that Courts will order parents back to Mediation if they feel it is warranted, so refusing to attend can be futile as you will end up in Mediation anyway. However, this time in court with a strict time limit and the added expense of Barristers and Solicitors
  7. Another option open to Judges is to order cost against the person who is refusing to attend Mediation.

Your best option is always to speak with the Mediator when they contact you, they are there to help and they are impartial, so you have nothing to fear and a whole lot to gain.

 

Categories: FAQ

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