MEDIATING DISPUTES IN A WORLD OF DOMESTIC VIOLENCE
by Rene Rimelspach
12/08/06

(Winning Essay in the Law Student Category James Boskey ADR Writing Competition. The competition is Sponsored by the ABA Section of Dispute Resolution and the Association for Conflict Resolution.)

As of the mid-1990s, the National Center for State Courts estimated that more than 200 court-connected mediation programs existed nationwide. The growth and popularity of mediation has been expanding in all areas of the law. Courts have been implementing mediation programs arguably in an effort to cut costs, increase efficiency, and just generally respond to the public’s increasing demands on the traditional court system.

In light of these goals, mediation has been especially popular in the area of family law. Many feel that mediation is a particularly appropriate tool in the midst of interfamilial disputes. However, the appropriateness of family mediation in the context of increasing awareness of the prevalence of domestic violence has been a point of contention between those who favor the use of mediation in the family arena and those who contend that mediation can be both unfair and potentially dangerous. It is important to carefully consider both sides of this division, and recognize that persuasive arguments emanate from each side in this dispute.

The fact remains that many domestic relations court-connected mediation programs do exist, and their use will most likely expand. In light of this fact, the ultimate goal of this Paper is to make suggestions in order to maximize the safety and effectiveness of court-connected programs. Part I of this Paper will examine some of the arguments against utilizing mediation in the domestic relations area . Part II will highlight some of the arguments in favor of utilizing court-connected mediation programs in the area of family law, as well as rebut the concerns discussed in Part I. Finally, Part III will explore some of the options available to courts to set up a safe and effective court-connected domestic relations mediation program.

I. THE ARGUMENTS WEIGHING AGAINST COURT-CONNECTED MEDIATION PROGRAMS IN LIGHT OF THE PREVALENCE OF DOMESTIC VIOLENCE

The arguments against utilizing mediation where there is evidence of domestic violence raise significant public policy concerns. To begin, many argue that women’s lack of power relative to men in our society in general makes mediation a poor option. Mediation critics argue that effective mediation is premised on a relatively equal balance of power, and that where domestic violence is present, even the most skilled mediator will likely not be able to compensate for the disparity of power. Those not in favor of mediating where there has been domestic violence also argue that the methodology and ideology of mediation make it ill-equipped to deal with domestic violence. Mediation requires the parties to engage in joint decision-making; premised on honesty, a desire to settle the dispute, and some capacity to compromise; all characteristics which may be lacking in a battering relationship. As one commentator stated, “It is difficult to imagine a batterer coming to a mutually agreeable outcome with his partner in mediation; it is equally difficult to imagine that he will comply with an agreement he believes is unfair to him.” Another range of arguments against using mediation in situations of domestic violence challenge the presumption that women who have been victims are able to articulate their own interests and needs.Advocates note that women who have been conditioned to always consider their spouse’s needs ahead of their own will not be able to break this habit in a mediation setting. As one outspoken mediation critic has stated, The reality is that the battered woman is not free to choose. She is not free to elect or reject mediation if the batterer prefers it, not free to identify and advocate for components essential for her autonomy and safety and that of her children, not free to terminate mediation when she concludes it is not working. She is ultimately not free to agree or disagree with the language of the agreement. Her apparent consent is under duress. The concern of those who are critical of mediation in cases of domestic violence is that the psychological damage has rendered the battered woman unable to advocate her needs and desires. They believe that domestic abuse creates an atmosphere whereby the victim is likely to be fearful, intimidated, and unable to challenge the authority asserted by the abusive spouse.

Another reason marshaled against using mediation where there has been violence is the belief that mediation places victims at increased risk for future violence. As most commentators will agree, the most dangerous time for a battered women is when she leaves her partner. But if mediation is used or mandated, then the mediation conference may allow a batterer access to a spouse who has successfully evaded contact since the separation. As a result of those mediated conversations, the batterer may have the opportunity to discover his spouses’ location, or harass her at the mediation But of even more concern than the potential danger from face-to-face contact is the possibility that mediated agreements will give the batterer more access to the victim, because of the alleged pressure in mediation to agree to generous visitation provisions.

Critics have also argued that court-connected mediation of domestic abuse cases is just another example of the court failing to treat domestic violence as a crime. <15> The mere fact that the court allows mediation of cases where family violence is present sends a message to both the abuser and the victim that “violence is not so serious as to compromise the parties’ ability to negotiate as relative equals,” which “blurs the message of offender accountability.” Others claim that “merely allowing batterers to negotiate with their victims undermines the criminal justice system’s message to batterers that their conduct is illegal and wrong.” Critics fear that mediating cases of domestic violence will take violence out of the public eye.

These are only some of the criticisms that have been leveled against mediation in the context of domestic violence; while they may represent some of the most persuasive arguments, this is not an exhaustive list. Other fears include the following: that mediators will not be aware of violence; that mediation agreements have few enforceability mechanisms, and fewer noncompliance consequences; that mediation cannot ensure full disclosure; that mediators utilize coercive tactics to force agreements; that the future orientation of the process ignores the reality of the past abuse; and many others.

II. THE ARGUMENTS SUPPORTING COURT-CONNECTED MEDIATION PROGRAMS DESPITE THE PREVALENCE OF DOMESTIC VIOLENCE

It has been argued that the question of whether or not we should mediate in light of domestic violence should be evaluated based upon a utilitarian analysis: does mediation provide more benefits than harms? As one commentator further explained, “Only if mediation or any of these processes is found to contribute more to violence than to societal benefit is there a clear case to reject such a process.” Despite the opposition to mediation because of domestic violence, there are many arguments that on the whole, it is more beneficial than harmful.

To evaluate the pros and cons of mediation, we must first clarify our understanding of “domestic violence” and “battered women.” Most mediation proponents agree that there are some cases where mediation is simply inappropriate, a fact that many opponents of mediation seem to ignore. Those who argue emphatically against mediation tend to assume that the couple is involved in a pervasive “culture of battering,” whereby the woman has been so brutalized by her abusive partner that she is unable to bargain in any meaningful way. This ignores the reality of a “continuum” of family violence, ranging from pervasive abuse to occasional violence. It is the contention of many that “mediation can be an appropriate and effective problem-solving technique with at least a percentage of those persons whose lives have been touched at some point by violence.” Another assumption by opponents of mediation in cases of domestic violence is that in order to mediate effectively, the parties must have relatively equal power, something that can never happen in a battering relationship. However, effective mediators are trained to balance the power between participants. In fact, the dominant literature in the field of international mediation asserts that mediation is the preferable format for disputes especially when there are great differences of power. Also, power issues are relative; while one party may have more power overall in relationship, oftentimes each party has differing amounts of power in different contexts. Finally, power imbalances are not unique to families where domestic violence is a factor; many divorcing relationships can be characterized as exhibiting unequal power. If mediation is only effective where there is relatively equal power between the parties, then many more families would have to be excluded from the process.

It can be argued that despite the drawbacks, mediation is more appropriate than the adversarial process, even in cases of abuse. Experts have argued that “the overwhelming view by both social science professionals and judicial observers is that the adversarial system is simply inappropriate” as an approach to divorce. The nature of the adversarial process can actually exacerbate the relationship between abusive partners. As has been observed, “he adversarial approach escalates the conflict, encourages scapegoating and victim behaviors, and reinforces just those factors that contribute to abuse in the first place.” It can also be argued that mediation is superior to the adversarial process when domestic violence is present because mediators themselves are more likely than attorneys to identify abuse.

In response to the argument that the mediation process protects batterers from legal sanctions and fails to treat battering as a crime, it can be argued that mediation actually encourages participants to seek outside help. Mediation can be an effective forum for getting people to commit to treatment. In the traditional adversarial process, litigants lack incentives to admit to past abuse for fear that a fact-finder will take abuse into account in a decision. Mediation provides batters and their spouses the opportunity to address the violence in a way that enables them to devise safety mechanisms. The mediation process encourages the participants to create guidelines governing future relations. Finally, eliminating the systematic forces encouraging batterers to deny abuse can further the victim’s healing process.

Another benefit is the sense of empowerment mediation can provide the victims of domestic violence. It has been stated that “o define a spouse as ‘abused’ encourages her to act from that framework . . . .mediation, as a future-oriented process, seeks to focus people on where they are going in their lives as separate, whole, independent people.” Also, mediation can empower participants to end violence by serving as a model of conflict resolution. In one mediation pilot program, women who had been formerly abused were excluded by the legislature from participating. Many victims expressed the belief that the prohibition against mediating was damaging rather than helpful. The victims believed that they should have the ultimate power to decide whether or not mediation was in their best interest.

Finally, and perhaps most importantly, there is evidence to support the argument that mediation in cases of domestic violence can actually have an impact on lessening the incidents of abuse. As Salem and Milne state, “A study conducted in Ontario by Professor Desmond Ellis found that mediation was associated with a greater reduction in physical, verbal, and emotional abuse than lawyer-assisted settlement.” Because the mediation process promotes cooperation, it can be utilized as a tool to help break the cycle of violence. As one group of researchers state, “mediators work well with existing therapeutic and legal approaches . . . .”

There are numerous other arguments that have not been explored in depth here, including the fact that mediators, unlike judges, can customize the process; that mediation, unlike the adversarial system, provides a model of future interaction; that mediation can address issues the court typically would not include; and the general advantages of mediation, such as it being more efficient and less expensive than the adversarial process.

III. HOW DO WE DEVISE A COURT-CONNECTED PROGRAM THAT SERVES AND PROTECTS?

It is the contention of this Paper that the benefits of mediation outweigh the potential harms for families overall, including those where violence is an issue.However, courts must address the valid concerns of mediation opponents. Including procedural safety nets at each step of a court-connected mediation program can serve to protect mediators, court personnel, and program participants. The remainder of this Paper will be dedicated to outlining the various protections family court programs can put in place before, during, and after divorce and or custody mediations.

A. Pre-Mediation Safeguards Not all families are appropriate candidates for court-connected mediation programs; but screening can be effective in assuring that inappropriate cases are excluded from the mediation process. Because many families can be better served by the mediation process, court-connected programs must establish adequate screening. Cases entering a court mediation program will fit into one of the following three categories: appropriate for standard mediation; appropriate for mediation but necessitating some modification in form; inappropriate for mediation.

The vital time to exclude inappropriate cases from mediation is at the pre-mediation stage. It is important that screening be detailed enough to illicit the many types of violence that can be present in a relationship. Simply asking “has your spouse has ever struck you?” would not uncover the many forms of psychological abuse which may be present, such as threats of violence. Also, the screening need be private, as many victims will not reveal abuse in the presence of their spouse. Having the screening done by an individual other than the person assigned to mediate the case is also an important safeguard, so that mediator bias can be avoided. It is also important that screening involve at least some verbal component in addition to written questionnaires, as some parties may not be literate. This could involve either a face-to-face interview at the time of the mediation or a prior telephone interview.

Once the initial screening process has been completed, one must determine which cases should be excluded, which should undergo modified mediation, and which can proceed as usual. The screener must distinguish between a relationship where the parties are on relatively equal terms, and those with a “culture” of battering. Mediation is inappropriate if the abuse is ongoing, there have been threats with or use of weapons, and/or the victim appears unable to place her needs ahead of the batterer’s. Others have suggested that cases should be excluded from mediation where the couple has had “mediation sessions” on their own. Anther pre-mediation safeguard that should be put in place is an understanding regarding “mandatory” mediation.Many states and localities have legislation in place that makes mediation mandatory. However, good court-connected mediation programs should recognize that not all cases are appropriate for mediation.Concluding the screening process or appearing at the orientation program should fulfill the mandatory attendance requirement.Parties should be able to decline participation after the process has been explained, if they are unwilling or unable to mediate.In order to make this clear to all, parties should be asked specifically whether or not they wish to continue after the screening process has been concluded. Another important factor in setting up the mediation program is to stress the importance of not tying the success of the program to the number of cases mediated to a full or partial agreement. It is important that all court-connected programs at least make some assurances to their mediators that performance will not be judged on either sheer volume of cases mediated or percentage of cases settled. This is important in order to avoid situations where mediator’s “gut reactions” lead them to believe a particular case should be excluded from the mediation process, but they attempt to mediate anyway in order to keep the program “numbers” up.

A final pre-mediation safeguard is the qualifications and training of their mediators. As one commentator has stated, “ediation training must provide the information and the skills needed so that mediators can serve as competent and sensitive assessors of the presence of domestic violence with knowledge of the effects of domestic violence on the victims.” Studies have shown that training can and does heighten awareness of the difficulties surrounding family violence. The need to obtain continuing education regarding domestic violence is a factor that should not be discounted by courts. It would be wise of all court-connected mediation programs to devise training requirements and minimum mediator qualifications.

B. Safeguards Throughout the Mediation Process

It is also important to have various safeguards in place during the actual mediation conference. When it has been established that there has been some past violence in the relationship, but not enough to exclude the couple from the mediation process, certain modifications should be available.For instance, mediators should be encouraged to utilize such methods as private caucuses, “shuttle” mediation, telephone mediation, and the use of special advocates. Ideally, the screener would make this determination, assign an appropriate mediator, and communicate the process to be utilized.

Further, it has been stated that “ediation, by definition, is adaptable to meet the individual needs of the negotiating parties. Mediation can include victim advocates or attorneys in order to balance negotiating power and eliminate intimidation and fears of underrepresentation.Caucusing procedures may be utilized to ensure safety or disclosure.” Finally, one commentator even made the suggestion that male/female or lawyer/social worker mediation teams may be an effective solution to the sensitivities involved in cases of domestic violence. As a component of any court-connected mediation program, participants as well as the mediator should be made aware of the fact that anyone has the power to terminate the mediation at any time.For instance, a mediation could be terminated if either party shows up under the influence, or if either party is unable to conform to the stated rules. Everyone must be assured that it is not considered a failure to terminate mediation, and there are no legal repercussions for doing so. It is essential that courts and mediators have a “termination plan” in place for when continuing would not be in the best interest of one or both of the parties, or when one party has explicitly requested termination. Because abuse issues may arise unexpectedly, mediators must be trained and prepared to handle potentially volatile situations.

It is also critical that courts take safety measures to protect all mediation participants during the process. Even parties who do not have a past history of violence could react unexpectedly under the stress of a family mediation.Careful attention should be paid by mediators to the physical layout of the building, internal alarm systems, and access to security personnel. Court services should take care that the address and telephone number of participants and the mediator be safeguarded. Protocols such as having separate entrances, different arrival times, and escorts to cars and transportation systems should also be incorporated in any court-connected program. It is the responsibility of court-connected mediation programs to provide for the safety of participants and mediators at all times during every mediation.

Finally, court-connected programs should provide participants information and access to community resources. If at all possible, courts should be able to provide advocates for those who may be in need of their services. Mediators should have the power to design other supports, such as suggesting that victims of abuse participate in counseling or support groups, or by having batterers participate in anger management programs. This may be a more pro-active mediator model than some programs currently advocate. It has been suggested that court connected services should have information on resources within the community, so that the court fulfills its duties by acting not only as conflict manager, but also as an agent of conflict reduction.

C. Post-Mediation Process Safeguards

It is important to the mediation process that courts not only facilitate mediation agreements, but assure their fairness on at least some level. A basic tenant of mediation is that the parties are autonomous, and should have the ability to devise their own agreement.When the mediation conference occurs under the auspices of the court, some attention must be paid to the inherent fairness of individual agreements to ensure consistency with basic public policy.Agreements that are so unjust as to offend basic sensibilities should be disallowed, in the interest of court and program legitimacy. It is the recommendation of this Paper that agreements be read into the record in the presence of a judge, so that there is some amount of judicial review available.

Courts must also consider the feasibility of some sort of follow-up when mediation has been successfully completed. It is in the interest of the court to be assured that mediation agreements are being upheld, and that the continuing safety of all parties to the mediation is accomplished.Also related to follow-up concerns, courts should not limit mediation to time-limits or one or two sessions.The dissolution of a marriage can be a time consuming process, and within limits, mediation participants should have as much time and attention as they need and deserve. <70> If the mediator and or the parties think a follow-up would be helpful, the court should make all attempts to schedule this session.

IV. CONCLUSION

There does not seem to be a clear case to reject mediation for family disputes, despite the prevalence of domestic violence.Considering the numerous benefits mediation can offer over the adversary system, it would seem senseless to exclude families dealing with domestic violence from court mediation programs.This is not to say that court-connected mediation programs can be unmindful of the special difficulties that the prevalence of domestic violence in our society presents. Because court-connected programs are under the auspices of the court system, they have an even higher duty to protect those members of society that need it the most. With proper planning, thorough training, and special safeguards, court-connected mediation programs can provide high quality, safe service to their constituents.