Sometimes Mediation is Not Appropriate

Mediation may not be appropriate for all situations and all approved and reputable mediation agencies have a procedure for assessing the suitability of clients for mediation(intake session).

Intake sessions follow differing formats at various dispute resolution agencies.
They should enable the provision of sufficient background information to identify relevant issues between the parties, explain the process and assist in developing rapport and trust between parties and the mediator which can significantly help in achieving a resolution and the mediation succeeding.

Intake sessions are also invaluable as a screening tool for the mediator to ensure that there are no impediments to the mediation proceeding.

Mediation may be inappropriate or less likely to be successful when:

i) The parties are out of control physically,emotionally or psychologically:

ii)Clients do not have the willingness or capacity to mediate or their mental competence is in question;

iii)There are indications of physical or sexual abuse,child protection issues or a risk of child abduction;

iv)Drug or alcohol addiction is present;

v)A power imbalance between the parties is indicated and not amenable to the mediation process;

vi)Mediation is used by one party to gain information that will or may be used to manipulate,control,harm or disadvantage the other party.

The parties' lawyers have a role to play in determining when mediation is not appropriate.

The lawyer may be concerned that the client may be placed in a vulnerable position vis-a-vis the other spouse.

Where there is a possibility of reconciliation,counselling or therapy may be more appropriate.

Ultimately it is for the mediator to decide whether the mediation should proceed and if so under what conditions.

Sometimes a less experienced mediator will be deterred by factors that will not faze a more experienced or highly skilled mediator.

Mike Emerson
Co-Principal Brisbane Mediations