The Strategy Spine places dispute resolution design at the heart of Explore: the strategic environment where practitioners test different pathways, model consequences, and identify the right approach for each unique matter. Mediation is one of the most powerful tools in that toolkit, but only when it is chosen with intention. The Spine asks not just whether to mediate, but whether this matter is ready, safe, and appropriately prepared for mediation to succeed. Family law mediations are often described as “essential” or “best practice”, but that can oversimplify a complex reality. Mediation can be transformative — or deeply unsafe and unproductive — depending on the timing, the screening, the practitioners involved, and the parties’ capacity to participate. Although many of you will gasp when you read the above statement, we can all agree that there are clear cases where mediation should not occur under any circumstances. For practitioners, the real skill is not simply “using mediation”, but knowing when mediation is likely to help, when it isn’t yet appropriate, and when it should not proceed at all.

The purpose of mediation (beyond “settlement”)

It’s easy to see mediation as a settlement factory. In family law, its purpose is broader:

• Providing a structured, confidential space for negotiation
• Allowing parties to retain control over outcomes, rather than handing decisions to a Judge
• Reducing the emotional and financial cost of litigation
• Supporting child-focused and future-focused arrangements
• Narrowing issues, even where full agreement isn’t reached

When we hold this broader purpose in mind, we can advise clients more honestly: mediation is not “good” because it avoids court; it is “good” if it moves the matter forward safely, realistically, and sustainably. But mediation may not always be “good” in some cases. Let’s delve deeper into this.

When mediation works: Key indicators

Mediation is most effective when certain conditions are present. No case is perfect, but the more of these you can tick, the higher the likelihood of a constructive outcome:

1. Safety has been properly screened, not assumed

• A structured family violence and risk screening has occurred (ideally by the mediator or FDRP, supplemented by your own screening).
• There are safety plans in place — separate arrival/departure, shuttle, support people, online participation where needed.
• There is no current pattern of coercive control or intimidation that would prevent your client from speaking freely, or the mediator has a clear plan to manage it.

If safety is marginal or fragile, the choice of mediator, model (joint vs shuttle), and format (in person vs online) becomes critical.

2. Power imbalance is manageable

Some level of imbalance is inherent in family law. Mediation works where:

• The mediator has the skills and confidence to actively manage power (not just “treat everyone the same”).
• Your client can understand, process, and respond to information with appropriate support.
• You can sit beside them as an advocate and buffer, helping them understand offers and options in real time.

Where imbalance is extreme and unmanageable, it moves from “risk to outcome quality” into “risk to safety and justice”.

3. There is sufficient information on the table

Mediation is not the place to discover basic information. It is far more likely to succeed when:

• Parenting: There is clarity around the current arrangements, risk issues, school/medical status, and any reports (s 62G, family report, expert evidence).
• Property: There is full financial disclosure or at least enough for indicative advice — balance sheet, valuations, super, debts, tax, and contingent liabilities.
• Both parties have had the opportunity to obtain independent legal advice.

If key information is missing (e.g. undisclosed entities, no valuations for major assets), mediation can still be used to agree on next steps (valuation process, disclosure timetable) rather than final division.

4. Parties are ready to engage with the future

Mediation is future-focused. It works best when:

• The acute crisis phase has stabilised (enough for rational thought and planning).
• There is at least a minimal level of emotional readiness to look beyond the separation story.
• Each party can identify priorities and non-negotiables, rather than only what they oppose.

Sometimes the answer to “Is this suitable for mediation?” is “Not yet” — and your work is to help the client move from crisis thinking to settlement thinking.

When mediation doesn’t work — or shouldn’t proceed

There are some recurring patterns where mediation is either unsafe, premature, or used as a tactical weapon.

1. Unmanaged high risk and coercive control

Red flags that mediation may be inappropriate (or require a highly specialised model):

• Ongoing threats, stalking, harassment, or digital surveillance
• A history of coercive control that has not been disrupted — your client is still fearful, hypervigilant, and unable to disagree safely
• Weaponised processes — repeated use of mediation as a way to delay, avoid compliance, or continue contact
• Severe allegations of family violence, child abuse, neglect or criminal proceedings relating to a party or the child

In these situations, mediation is not appropriate and in most cases the risks cannot be mitigated — rendering it inappropriate and, in some cases, harmful to the victim.

2. No genuine willingness to negotiate

Mediation cannot manufacture good faith where there is none. Indicators include:

• A party openly states they are attending only to obtain a s 60I certificate or “to tick the box”
• Fixed, extreme positional bargaining (“I’ll settle for nothing less than 100% care/80% of the pool”)
• Threats of “I’ll agree to this today, but if we go to court I’ll make sure you get nothing/never see the kids”

This doesn’t necessarily mean mediation should never occur — but expectations must be realistic. Sometimes the value is issue refinement or creating a record of one party’s intransigence. If a mediation is failing to progress for this reason, the FDRP should make the appropriate decision to end the mediation to avoid unnecessary wastage of resources.

3. Critical information gaps

If you cannot give your client informed advice because of missing information, you are asking them to negotiate in the dark. This is particularly problematic where:

• There are complex structures (trusts, corporate entities, SMSFs) with little disclosure
• One party has exclusive knowledge/control of finances
• There are serious allegations (e.g. abuse, risk) with no corroborating material and no expert assessment yet

In those cases, a stepwise approach can be more appropriate: agree at mediation on interim arrangements and a framework for disclosure/valuation, with final property division or long-term parenting orders left for a later stage.

4. Urgent or protective orders are required

Mediation should not be the first port of call where:

• There is immediate risk to a child or party
• Urgent injunctions are required (e.g. asset dissipation, relocation, non-removal)
• Deadlines demand rapid court intervention (e.g. limitation periods, overseas removal risk)

In these matters, court first, mediation later is often the safer sequence.

The practitioner’s role: setting mediation up to succeed

When mediation is appropriate, the way we prepare can make or break the outcome. Key practitioner tasks include:

• Pre-mediation reality-testing
  • Helping your client understand likely ranges of outcome
  • Identifying BATNA/WATNA (best/worst alternatives to negotiated agreement)
• Curating documents — not a data dump, but targeted material
• Clarifying issues — parenting, property, child support, spousal maintenance, discrete interim issues
• Preparing your client emotionally — explaining process, roles, and what may feel difficult on the day
• Choosing the right mediator and model — child-inclusive, lawyer-assisted, shuttle, co-mediation, online/in person

When mediation “fails” — reframing the outcome

Not all valuable mediations end in full agreement. “Non-settlement” can still be a success if:

• Key issues are narrowed
• Interim arrangements are agreed
• Disclosure or valuation steps are formalised
• Parties move from entrenched myths to more realistic expectations

Our role is to help clients understand that progress (not just “signing off a final agreement”) can be a meaningful outcome.

Practical checklist: Should we mediate this matter now?

Before recommending or agreeing to mediation, ask yourself:

• ☐ Has safety and risk been properly screened?
• ☐ Is power imbalance manageable with the right model and mediator?
• ☐ Is there enough information for my client to receive informed advice?
• ☐ Is my client emotionally ready to make forward-focused decisions?
• ☐ Are there urgent or protective issues that must be dealt with by the Court first?
• ☐ Is there at least some willingness — however begrudging — to explore options?

If you can answer “yes” to most of these, mediation has a real chance to work. If not, your task may be to sequence the steps differently, rather than forcing mediation to do a job it isn’t designed for. Whether mediation succeeds or fails is rarely a matter of luck. It is the product of preparation, screening, and strategic design — which is exactly what the Explore and Engage steps of the Strategy Spine are built to provide. When safety has been assessed through Assess, pathways have been designed through Explore, and the negotiation environment has been carefully managed through Engage, mediation becomes what it is meant to be: a deliberate, purposeful step toward safe and durable resolution.