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Domestic violencemediation and dispute resolution

ACT’s domestic violence mediation program leads the way

By December 11, 2018July 1st, 2024No Comments

The ACT has been leading the way with a different approach to dealing with domestic violence cases than through the traditional path of court proceedings. The ACT’s domestic violence mediation program has been going for 15 years but last year the mediation program was made compulsory for every family violence protection application in the ACT.

The domestic violence mediation program is regarded as ground-breaking and has had a 95% success rate from the very beginning— that is, only 5% of matters actually proceed to a formal final hearing.

Currently the ACT is the only Australian state or territory that has made the domestic violence mediation program mandatory. The rest of the states, and some overseas countries, are however demonstrating interest in the program.

The idea behind the program is to increase women and children’s safety. New approaches are regarded as necessary because court proceedings themselves have been shown to increase the danger to women and children and have proven deadly in some cases. Court processes are “the most dangerous time for many victims who successfully obtained an order”, says ACT Chief Magistrate Lorraine Walker.

In highly publicised cases, it’s been shown that a woman has been in more danger after pursuing protection orders through the courts. Cases such as Tara Costigan are an example of where a woman has sought help through the courts immediately prior to her death at the hands of her abuser.

Therefore, minimising conflict in the court environment is seen as vital to improving the safety of victims.

Unlike in most mediation settings, with domestic violence mediation, parties are kept apart in separate rooms while a mediator moves between them, working out the terms of an agreement.

Through this mediation, alleged offenders are able to be involved in the way the matter is handled in a way that they are not when it proceeds through the courts.

Deputy Registrar Philippa Spence runs the domestic violence mediation program and told ABC that, “The benefits of conferencing is that it provides ownership to the parties themselves to determine what outcome they get from the order or from the application”.

“For example, it can determine what contact the respondent has with the applicant or what contact the respondent has with any children to the order. So it really allows them to determine what they feel comfortable with.”

The program operates on a “no admissions” basis.  This means agreements are reached by consent instead of being imposed by a magistrate in a courtroom. However, the orders that are made in the mediation are legally binding. While breaches of agreements made do occur, those involved say because both parties have “ownership” over what the ultimate agreement is, breach rates are low.

Another benefit of the domestic violence mediation program is its efficiency. The domestic violence caseload of the courts is large, with over a thousand applications made to the court this year. Magistrates typically hear only a single formal domestic violence case each day, whereas domestic violence mediators can handle around 15 conferences daily.

Due to the nature of the matters, the process is inevitably highly emotional and participants often display anger and frustration. As to whether this creates safety issues for mediators, Ms Spence said there were safety measures in place, such as the conferencing rooms having two exits and there being a “duress button” in the room. She said mediators were trained on how to respond to situations where emotions have escalated:

“Sometimes, if emotions are escalating, the best thing to do is just to remove yourself from the situation and walk out and let them calm down. Other times you might need to get them a glass of water, let them have a think about it.”

She said there had never been a serious safety issue in the program’s 15 years.

Agreements made in mediation need to include workable terms that promote safety. Margie Rowe of the ACT Legal Aid Office praises the system as working extremely well but notes that, “There’s the risk, I think, on both sides, that they settle and agree to either no order or an order that doesn’t have sufficient terms to promote safety,” she said.

Safety planning is a crucial part of dealing with domestic violence situations. It isn’t enough for a woman to simply receive a protection order in writing and for that to be regarded as solving the problem and keeping her safe.  Practical issues of safety are “incredibly important” according to Canberra Women’s Legal Centre spokesperson Claudia Maclean. Aside from dealing with the practicalities of the situation, safety planning “more importantly also gives a sense of control, so it is women who are controlling their own safety”. This has important psychological benefits for victims who have often had very limited control over many aspects of their lives.

The mediation program is not regarded as being the answer to all domestic violence cases. Caution needs to be taken in relation to the “no admissions” basis of the agreements. If a matter does not proceed to a formal record of allegations of domestic violence, this could have a flow on effect on other proceedings. For example, related family law matters could be affected if formally recorded allegations are not be available to be considered.

And it’s acknowledged that a “tougher approach” is still required in some cases. Ms Maclean says: “If there is an associated criminal charge then the applicant or the alleged victim will have a special interim order and that’s automatically made,” she said.

The mediation program is subject to criticism over the idea that alleged offenders are getting a say in how a domestic violence situation should be handled. But this criticism needs to be viewed in light of the success of the program and the improved safety of women and children.

Source: ABC

If you need family law advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400. You can find more information on our services in relation to domestic violence matters here.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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