ABSTRACT
Mediation as a tool in dispute resolution goes back to biblical times. However mediation is not a simple fix, it needs certain preconditions in place to be successful. Voluntary participation used to be a precondition in mediation theory but now mandatory mediation in family disputes is discussed. This chapter considers eight arguments pro mandatory mediation (compared with legal proceedings) to solve a custody dispute and explains the meaning of the ‘best alternatives to a negotiated agreement’ (BATNA) and why the legal presumption of shared parenting is an indispensable base for BATNAs in child custody issues. It describes the model of mandatory mediation in Australia since Australian law reform in 2006 and the following developments in society and justice. Although the Council of Europe Resolution no. 2079 (2015) recommends that member states introduce the principle of shared residence following a separation into their laws and develop mediation, there has been an unfortunate inactivity in law setting during the five years that have followed.
