My experience has shown me that there is not much that cannot be resolved, as long as the parties are sincere about trying to resolve. That said, there are certain matters for which mediation is not the appropriate or effective process:
1. Domestic violence
Disputes where abuse is present are not suitable for mediation as a party’s decision to enter into a settlement may be unduly influenced. For this reason there are divided approaches as to the suitability of mediation where there is a pending Domestic Violence application or where an order has been made. My years as a litigator and my training on how to deal with matters where there is a Protection Order in place give me the skills to, first, consider the facts and circumstances of the parties seeking to mediate; then to apply my training and the recommended guidelines to assess whether mediation may be an option.
Where one of the parties is in a state of emotional or mental dysfunction, they are not capable of being able to negotiate. This may include substance abuse or be during a period of trauma.
3. Not the right process
Where there are genuine disputes of fact or a question of law which the parties cannot agree or where they do not know the answers or have been given contrary professional opinons, then mediation is not the appropriate process.
4. Parties are not sincere
Mediation works when there is a sincere desire by both parties to resolve their dispute and the parties are committed to using the process.