What Exactly is Family Mediation?
Family mediation, or family dispute resolution more formally, is a collaborative process designed to resolve issues stemming from separation and divorce. It is managed by a qualified, accredited mediator with specialist skills recognised by the Office of the Attorney General of Australia.
The two most common reasons for attending family mediation are the development of parenting plans and organising the financial/property division post-separation.
It’s essential to note that all family dispute resolutions are framed by the principle of ‘The best interests of the children.” This principle is a legal requirement having been enshrined in law in the Family Law act (1975.)
When a couple decide to divorce the Family Court expects them to attempt family mediation with a view to avoiding court altogether. There are exceptions such as when family violence has occurred or due to cognitive capacity or significant health issues.
What Confidentiality means in Family Mediation
Another principle underpinning family dispute resolution is confidentiality. While most people feel they have a fairly solid understanding of what this means it is a nuanced and limited concept.
From first enquiry to the end of the mediation sessions itself all is confidential, with a few exceptions. If the mediator feels that anyone impacted by the mediation is likely to harm themselves or someone else, then mandatory reporting requirements apply. Also, if the mediator becomes aware of illegal activity by anyone impacted then reporting is also expected.
These exceptions are discussed with clients prior to mediation commencing. This is usually done as a preamble before intake or through sending information to a potential client after the initial enquiry.
At Resolutions Australia we have had to contact child protection on numerous occasions as well as the police due to immediate safety concerns and illegal activity disclosures. It often happens due to inadvertent disclosures during conversations or through looking at a number of low-level indicators appearing. Family mediators should always err on the side of caution and leave the follow-up to the appropriate agencies!
Importantly, all that is said and documented during family mediation is legally protected. This means it cannot be used in a court action at some later time. This provides surety for the parties that anything brought up cannot be made public. A valuable security blanket for a positive mediation experience.
What’s Kept Private in Family Mediation Services?
Your discussions
All discussions undertaken as part of the mediation process, with an accredited practitioner, are confidential and unable to be brought up in court.
Any proposals or offers
Due to confidentiality protections any documented offers or proposals from either party cannot be used later in any court action.
The intake (assessment) session
Intake is something of a grey area in terms of whether it can be used in the Family Court. Generally speaking it is unlikely to be raised however within case law there may have been exceptions. It can be reasonably argued that as intake with a client is considered a legally expected part of the family dispute resolution process it should not be able to brought up in court.
Personal and family information
It could be argued that this information is the most important of all. It is covered by the same legal protections as all other information in mediation.
When a Mediator Must Speak Up (The Exceptions)?
Risk of harm to you, the other person, or a child
States and Territories across Australia have different regulations and legislation regarding who is required to report when a risk of harm becomes apparent. Regardless of this, family dispute resolution practitioners are legally required, country wide, to report concerns if they believe a client party is at risk of harming themselves or others. Harm doesn’t need to have happened. The risk of harm also doesn’t have to be immediate.
For risk of harm incidents concerning children family mediators should contact the appropriate child protection agency. Regarding adults or immediate danger, the police should be contacted.
Importantly, these occasional issues can derail a mediation. This is of no concern however given that a risk of harm is present. The family mediator’s sole concern in these situations is the safety of all concerned and this is maintained through contacting the appropriate authorities.
Disclosure of illegal activity
Much like the risk of harm a family dispute resolution practitioner is legally obligated to contact the authorities if illegal activity is disclosed or suspected of having occurred or of occurring in the future.
Criminal acts being noted or suspected may well be a byproduct of the mediation discussions however they should not be dismissed. By law action must be taken.
How private/individual sessions work and what stays in the room
As we’ve seen from above all that happens in mediation is confidential (with a few exceptions.) Coupled with this is confidentiality with individual parties.
What a mediator discusses with one party during intake isn’t allowed to be disclosed to the other party at any point unless consent is offered by the client who disclosed. This is also true for private sessions as part of the mediation itself.
In effect anything said by a client to their mediator cannot be shared by the mediator with the other party without express permission.
Why confidentiality matters in Family Mediation Services?
Confidentiality matters hugely in family dispute resolution. It provides a security blanket over the entire process. Knowing what is said is confidential parties are empowered to open up, discuss sensitive matters, and feel secure in the knowledge that nothing shared leaves the room. The emotional toll is also lower than open court where the world can hear your most intimate thoughts and feelings.
How Online Mediation Keeps Things Confidential?
In recent years online family dispute resolution has been a very positive development within the profession. By using secure platforms such as Zoom or Teams, participants can rest easy knowing that their contributions to the mediation are safe and secure.
As the family mediator is the host they are able to establish the security protocols, ensure nothing is being recorded, and can use layers of electronic security to protect parties.
Why Families Across Australia Choose Resolutions Australia?
When it comes to matters confidential Resolutions Australia leads the way. Our staff are constantly reviewing and refining their understandings around confidentiality, privacy, ethics, duty of care, conflicts of interest, and the moral base underpinning the profession. All have engaged in comprehensive, ongoing training in these areas and all are quick to seek peer and expert opinions if any professional dilemmas arise.
If you’re seeking a family mediation experience with a profoundly moral base, where ethics and rights are regarded above all else, then Resolutions Australia is waiting to hear from you!
FAQs
Can what I say in mediation be used against me later?
Simply put, no. The family mediation process, run by an accredited practitioner is protected. No information from the mediation is admissible in family court.
Is the intake session confidential too?
As argued above, intake is a legally required aspect of the family mediation process (Family Dispute Resolution Practitioner Regulations, 2008.) As such it is our belief that intake is confidential.
What can the mediator tell the other person?
Nothing. Whatever information one party discloses in private to the mediator cannot be mentioned to the other.
Is online mediation private?
Absolutely. In fact we believe that with layers of security and reliable platforms it is the most secure, private, confidential method of mediating!
Are there any situations where confidentiality doesn’t apply?
Yes. If illegal activity is disclosed or if the mediator believes there is a risk of harm by a party to themselves or others.
