The Dispute Settlement Centre considers the following factors when assessing matters for mediation.
For Personal Safety Intervention Order mediations, these guidelines are contained within section 34 of the Personal Safety Intervention Orders Act 2010 and will be used in assessing suitability for PSIO matters that are referred for mediation.
Matters that are unsuitable for mediation through the Dispute Settlement Centre of Victoria
The Dispute Assessment Officer will assess the following matters as unsuitable for mediation:
The existence of pursuit-type stalking
For example, a party repeatedly follows, telephones or sends messages (including SMS & email), loiters or keeps an individual under surveillance and any other repeated behaviour towards another party which makes that person fear for their safety.
There are allegations of family violence
Disputes where parties are family members and actual or alleged violence has occurred between parties cannot be mediated by the DSCV.
Matters between family members are covered under the Family Violence Protection Act 2008. The definition of “family member” has the meaning given in the Family Violence Protection Act 2008.
If the Dispute Assessment Officer identifies during intake that a matter may involve family members, the Dispute Assessment Officer may refer the parties to the Magistrates' Court of Victoria to apply the Common Risk Assessment Framework for Family Violence. A Registrar can then discuss the need for the family member to apply for a family violence intervention order and will refer the member to protective or support services.
If there is no substantive ‘dispute’ to be mediated or no ongoing relationship
Mediation is not suitable if there is one or more of the following:
- no substantive issue requiring discussion,
- no dispute that needs to be mediated, and/or
- no ongoing relationship between the parties.
For example, in a small community supermarket car park, one party takes the car park which the other party was about to drive into and becomes verbally abusive.
There is a current Personal Safety Intervention Order which restricts the parties from being in the same room
If the Order does not have a clause permitting mediation, the Dispute Assessment Officer can refer the parties for independent legal advice as to whether it is appropriate to have the Order varied to allow for mediation.
Assessing suitability for mediation
In determining suitability for mediation, the Dispute Assessment Officer will consider the factors set out below.
The Dispute Assessment Officer may assess a matter as either suitable or unsuitable for mediation by taking into account the following factors:
The history between parties
The Dispute Assessment Officer will conduct a risk assessment that takes into account the history between the parties, including any violence, fear and power imbalances.
Fear or concern expressed by either party
The Dispute Assessment Officer will consider any level of fear expressed by either party.
The future risk of harm, including escalation of the threat or violence
The Dispute Assessment Officer will take into account the likelihood that any negative behaviour may increase in the future.
The existence of any power imbalance between the parties
The matter may be unsuitable for mediation due to a power imbalance, for example, a younger party mediating with an older party.
The level of vulnerability of the applicant
For example, a person may have a mental health condition, a disability, or be at a disadvantage due to age. Another example is if a person with a physical or cognitive disability alleges that they have experienced violence from their carer. In these circumstances the client may need to be referred to a more appropriate service.
The capacity of both parties to understand and participate in the mediation process
For example, a party who has a cognitive disability may have difficulty in understanding the mediation process. There may also be language difficulties that need to be taken into account.
The duration and nature of the behaviour
The Dispute Assessment Officer will assess the duration and types of behaviour involved in the dispute, and assess how entrenched the conflict is.
An example may be a longstanding dispute between tenants.
If an application for a Personal Safety Intervention Order was brought by a police officer on behalf of the applicant
Police involvement may be an indicator that the matter is unsuitable for mediation. The Dispute Assessment Officer will consider whether the police have applied for a personal safety intervention order on behalf of the applicant because of the severity of the respondent’s behaviour or the vulnerability of the applicant.
Whether both parties genuinely want to resolve the dispute
Through thorough intake, the Dispute Assessment Officer will discuss the mediation process with the parties and determine whether each party will participate in good faith. If not, the matter would be unsuitable for mediation.
If mediation has failed in the past
For example, two parties have mediated previously but were unable either to reach a resolution or to subsequently adhere to the agreement.
The Dispute Assessment Officer will clarify with the parties whether:
- there are new circumstances or new issues in dispute
- the parties are open to negotiating these in good faith,
- the parties had adhered to past agreements,
- either party has reconsidered their position,
- both parties have the capacity to understand and participate in the mediation process.
Any other matter the Dispute Assessment Officer considers relevant
There may be circumstances or external factors that have an influence on a mediation assessment that are not contained in the items above.
Potential strategies to increase the suitability of matters
If the factors above apply, the Dispute Assessment Officer may consider whether the following strategies will enable parties to participate effectively and so make the matter more suitable for mediation:
The Dispute Assessment Officer will explore whether the presence of a support person for either or both parties may overcome a power imbalance or assist a vulnerable person to participate fully in mediation.
For example, a party with a cognitive disability who may have difficulty in understanding the mediation process may be able to participate with a support person or advocate assisting them.
A support person may be a family member, a friend, a disability advocate, a lawyer or other professional person.
The Dispute Assessment Officer will assess whether the chosen support person is suitable and will be helpful in the mediation and not escalate the conflict.
Where a party is non-English-speaking the DSCV can arrange for a qualified independent interpreter to be present to assist the mediation process. An interpreter may be needed even where a party speaks some English but needs assistance with more complex concepts or where emotions are involved.