Durability of agreements
9.71 When those who had concluded mediation agreements were followed up by the researchers three months later they indicated that there were changes to the agreement in 33% of cases, mainly in respect of parenting issues. Only 8% of these changes were due to a breakdown of the agreement. Forty per cent sorted out the changes themselves and 25% were assisted by their lawyers. Twelve and a half per cent received help from further mediation or counselling. Mediation contributed to a more positive relationship with the other parent in 34% of cases.1004
9.72Three months after conclusion of the mediation, an application to contest matters dealt with in the mediation agreement had been filed in court in only 11% of cases. Only 2% of cases had completed a contested hearing. The researchers concluded: “The figures suggest that low numbers of mediated cases progress through to contested lists and very low numbers complete a contested hearing.”1005
Domestic violence and mediation
9.73Concern has been expressed as to whether screening procedures at intake are sufficient to identify cases that are unsuitable because of domestic violence.
9.74A 1996 research study by LAFS1006 recommended that the mediation agencies must recognise:
“the high prevalence of violence or abuse … by ensuring that all mediators and other staff are appropriately trained in understanding and identifying issues relating to family violence; all agencies should have intake, referral, mediation, follow-up and other procedures appropriate to the needs of clients whether or not clients proceed to mediation”. 1007
Domestic violence policy of the Family Court
9.75There is a duty on approved mediators to consider the risk of child abuse and family violence in deciding whether to mediate or not.1008 The obligation to report abuse is confined to child abuse.1009 The guidelines indicate that if there is current violence, the parties will not be accepted for mediation. If it is not current, but there has been a strong history of family violence, the parties will not usually be accepted for mediation unless the victim can convince the mediator that he or she is able to negotiate on a reasonably equal footing. The policy states that “it is inappropriate to deny the mediation service to the survivor of violence if that
1004 The figures for Bordow and Gibson’s 1994 research was 40% and 43% for the 1995 study.
1005 Ibid at 24.
1006 Research/Evaluation of Family Mediation Practice and the Issue of Violence, Legal Aid and Family Services Division of the Attorney General’s Department, August 1996.
1007 Executive Summary, ibid at iv.
1008 Order 25A Rule 5 of the Family Law Rules.
1009 Section 67ZA of the Family Law Act 1975 as substituted by the 1995 Act.