A hot topic for non-mediation professionals, who are familiar with mediation, is often when is mediation not suitable. Our answer to this is that it is not suitable in very few cases. Some people are critical of mediators, saying that mediators argue that mediation is the answer to all disputes. This is of course not the case and there are circumstances in which mediation is definitely not appropriate (which we’ll come onto in a minute). However, we would draw a distinction between cases where mediation is not suitable, and cases where mediation might work, but may be more difficult. In cases where mediation might work it may well be that the parties involved are reluctant to come to mediation. It may also be that mediation will need to take place with certain safeguards put in place (for example the parties arriving and leaving at different times). But this does not make mediation unsuitable. In some cases there may be no best option to help a couple who’ve separated resolve matters. It may be that mediation is simply the best of the options available (or the least worst depending on your perspective). But this does not make it unsuitable.
Mediation is only likely to be unsuitable in two scenarios:
1. Where there has been difficulties in the relationship which have led to one person struggling to be able to make their own decisions about what happens next. This may be as a result of violence in the relationship that has left one party living in fear and quite unable to even contemplate sitting in the same room as the other (or even be in the same building). There may be legal restrictions in place to prevent the parties from being near each other. It may be that there has been emotional or financial abuse and one person’s confidence and self-esteem has been eroded and they need support to understand what is happening and to make decisions about what happens next.
2. Where either party requires the protection of the court then this will also make mediation unsuitable. This might be a situation where abuse has taken place and it would now be unsafe for a child to spend time with that parent. Or it may be a case where one party is trying to hide assets in which case the other party may need to use the court’s powers to freeze or find assets.
In other scenarios mediation may be made more difficult by the following factors:
1. One or both parties is not interested in making changes to find a resolution for the future.
2. One or both parties are anxious about being in the same room together.
3. The relationship between the parties is very acrimonious and communication between them is either very difficult or non-existent.
None of these three scenarios make mediation unsuitable. They make mediation more unpalatable to those involved but that is a different matter. Particularly in the case of number 3 it may mean that although the parties are not keen to try mediation they are in need of the benefits that can be reaped through using the process.
If you are unsure whether mediation would be suitable in your situation then please get in touch with us so that we can talk you through the options that are available to you.
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