Drafters of new domestic violence laws should scrutinize carefully any proposed articles providing for mediation. Such provisions have proven problematic and dangerous for domestic violence victims.
In several CEE/FSU countries, women are offered the opportunity to participate in mediation as part of the divorce process. Drafters of domestic violence laws in Romania and family law in Serbia have included mediation provisions, and a law requiring mediation in divorce proceedings exists in Montenegro. In the United States, courts have referred cases of criminal domestic assault between intimate partners to mediation as a (voluntary) alternative to prosecution. From: Comment: The Limits of the Neighborhood Justice Center: Why Domestic Violence Cases Should Not Be Mediated, by Kelly Rowe, 34 Emory Law Journal 885, Summer 1984.
Mediation can also occur when the parties to a divorce are ordered to resolve issues such as child custody or visitation.
In the United States, mediation involves the use of a neutral third party to facilitate an agreement between two parties. The responsibility to reach agreement rests with the parties themselves. One of the goals of mediation is to bypass an overscheduled judicial system with a quick, low-cost alternative. However, the assumptions underlying the use of mediation do not apply when there has been domestic violence.The goal of mediation is to reduce conflict between the parties; however, domestic abuse is a complicated issue of power and control. Mediation assumes that both parties are equal, yet an abuser holds tremendous power over a victim. The imbalance of power between the parties cannot be remedied despite the skills of the mediator, even when a victim advocate or attorney is present. During mediation, the abuser can easily control the victim through the use of signals known only to the couple. Additionally, if there is a long history of domestic violence, the victim is often afraid and reluctant to voice her concerns.Mediation focuses on future behavior, and many mediators do not allow the victim to address past issues of violence. This furthers the victim's sense of personal responsibility for the abuse, and undermines the accountability of the abuser. Research has established that the time that when a victim leaves the abuser is statistically the most dangerous time for her. Requiring her to be in his presence during mediation increases her risk. From: Procedural Justice Implications of ADR in Specialized Contexts: The Culture of Battering and the Role of Mediation in Domestic Violence Cases, by Karla Fischer, Neil Vidmar and Rene Ellis, 46 Southern Methodist Law Review 2117, 1992.
Mediation in Criminal Assault Cases
Supporters of mediation in criminal assault cases claim that the process will address the causes of the abuse and devise remedies for the abusive situation. However, mediation removes a domestic violence case from public view and objective judicial scrutiny. The arrest, prosecution and removal of a violent spouse not only protects a family, it sends a clear message to society that domestic violence cannot be engaged in with impunity. From: Yes, No and Maybe: Informed Decision Making About Divorce Mediation in the Presence of Domestic Violence, Nancy Ver Steegh, 9 William & Mary Journal of Women and the Law 145, Spring 2003.
Domestic violence law and criminal justice system intervention have played an important role in publicizing the seriousness of domestic violence and in penetrating the silence that allows the perpetrator to commit violence. Mediation perpetuates this realm of secrecy and isolation from public scrutiny. From: Note: The Dangers of Mediation in Domestic Violence Cases, by Sarah Krieger, 8 Cardozo Women's Law Journal 235, 2002.
In countries that are just beginning to offer orders for protection in domestic violence cases and criminal sanctions for violation of these protective orders, promoting the alternative of mediation constitutes a serious derailment of accountability.Mediation in Family Law CasesMediation of family law cases is mandated by statute or court rule in many jurisdictions in the United States. Issues that may be mediated include custody disputes, visitation problems and questions of property settlement. As in criminal cases, mediation in family law cases is predicated upon the idea that a fair and acceptable agreement can be negotiated by an objective third party. The Toolkit to End Violence Against Women states, “This means that the parties should have relatively equal power in the relationship, full information about the resources available to each person and any outstanding or future financial obligations, sufficient independent economic capacity…and the ability to protect their own interests in the process of mediation.” The dynamics of domestic violence preclude the availability of such resources for battered women. Abusers achieve power and control by withholding information and controlling the activities of their partners. According to the Toolkit, “…women who are battered may be unable to participate fully or freely in mediation. They routinely assess the risks or costs of noncompliance with their abusive partner's demands, particularly related to disclosure of abuse. In mediation or in legal proceedings, battered women may not appear intimidated or fearful, but they may nonetheless be doing quick mental calculus to avert danger, achieve safety, and gain some authority to manage their lives. They may be weighing whether to assert their legal interests against the likelihood that doing so may compromise their safety.”Another risk is that both the process of mediation and the outcome are often not adequately reviewed by family court systems. Mediators often lack training in identifying domestic violence and the dynamics of abuse. Untrained mediators may allow a seemingly reasonable abuser to dominate a silent victim, who may not have an attorney to advise her. Judges rely upon the ostensible independent agreement of the parties to rubber-stamp the outcome.. The American Bar Association has developed Model Standards of Practice for Family and Divorce Mediation, and has addressed mediation in the context of domestic violence as follows:Standard X: A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.Further elaboration of the Standard requires a mediator to be adequately trained in domestic abuse, to “make a reasonable effort” to screen for domestic abuse prior to the mediation, and to continue to assess for domestic abuse during the mediation process.Many experts believe that effective screening of a couple before or during mediation is very difficult, if not impossible. States that require mediation should consider that many victims who are divorcing have never divulged the abuse, and are not likely to do so unless the screening process is highly skilled and confidential. When domestic violence has occurred, the issues of power and control are so pervasive that no mediator, however well-trained in power balancing, can understand the hidden language that is used between the couple, and therefore cannot detect the use of threats or coercion in the process. Experts agree that even with the addition of careful screening questions about the abuse before and during mediation, a mediator cannot sufficiently counteract the power discrepancy and facilitate a balanced agreementIf a mediator manages to discover that there has been abuse or threats of abuse, the American Bar Association Standards ask the mediator to consider taking such measures as holding shuttle or separate mediation sessions, allowing and encouraging the participants to be represented by an attorney or supported by a friend or advocate, and referring them to community resources. The final optional measure is to suspend or terminate the mediation session. If that happens, a mediator must understand that this will create additional risk for the victim, and manage the situation accordingly with safety plans and community referrals. Mediations programs must include such practical arrangements as multiple entry and exit points in the building, separate waiting areas, and escorts to and from vehicles. Victims should always be able to opt out of mediation requirements, and in the United States, state laws may limit mediation where there is domestic violence. From: Note: The Dangers of Mediation in Domestic Violence Cases, 8 Cardozo Women's Law Journal 235, 2002. There are exceptions for persons who indicate that domestic violence has occurred, or for whom protective orders have been issued. Some states provide a statutory exemption from mediation in domestic violence cases, while others require the judge or court clerk to screen out cases with prior criminal convictions or civil orders of protection, or based on information provided in screening tools. From: Mediation and Domestic Violence: A Practical Screening Method for Mediators and Mediation Program Administrators, by Alexandra Zylstra, 2001 Journal of Dispute Resolution 253, 2001. However, poor screening techniques and insufficient training of court personnel have limited the effectiveness of these exceptions. From: Domestic Violence and Mediation: Responding to the Challenge of Crafting Effective Screens, 39 Family Law Quarterly 53, (Spring 2005).
See the 2008 United Nations expert group report entitled "Good practices in legislation on violence against women", section 7.A on the prohibition of mediation. For the Russian version of the recommendations in "Good practices in legislation on violence against women," click here.
For a list of research and reports on mediation, click here.
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