last updated May 2019

Drafters of new laws should carefully scrutinize any proposed articles providing for mediation in cases that may involve domestic violence. Throughout the world, women may be offered or required to participate in mediation with their intimate partner when pursuing a divorce or as an alternative to prosecution of domestic violence. Mediation may also be offered or required when the parties to a divorce are ordered to resolve child custody disputes. However, such provisions have long been shown to be problematic and dangerous for domestic violence victims.[1]

Mediation generally 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.

Mediation is inappropriate in domestic violence situations. Mediation presumes that the parties have equal bargaining power and an equal voice in decision-making, focuses on future behavior, and many mediators do not allow the victim to address past issues of violence. This can further the victim's sense of personal responsibility for the abuse, and it undermines the accountability of the abuser. Research establishes that the most dangerous time for a victim is when she leaves the abuser.[2] Requiring her to be in her abuser’s presence during mediation increases the risk of harm. Further, some evidence indicates that mediation participants may be less likely to reach a complete agreement through mediation in domestic violence situations. [3] Due to the unequal bargaining power between a victim of domestic violence and her abuser, abusers are afforded with further opportunities to exercise power over the victim.

Acknowledging the Imbalance of Power

Often, the goal of mediation is to reduce conflict between the parties; however, domestic abuse is a complicated issue of power and control rather than interpersonal conflict. Standard mediation assumes that both parties are equal, meaning “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.”[4] However this is not the case in instances of domestic violence where the abuser holds tremendous power over the victim:

[W]omen 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.[5]

This 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 when her abuser is present.

Mediation in Criminal Assault Cases

Mediation in criminal assault cases is similarly fraught with risks. 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. In addition, mediation removes a domestic violence case from public view and objective judicial scrutiny. On the other hand, the arrest, prosecution, and removal of a violent partner not only protects a family, it sends a clear message to society that domestic violence will not be tolerated. 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.

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 Cases

Mediation 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. One risk is that both the process of mediation and the outcome are often not adequately reviewed by family court systems.

Mediators may 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 by providing the standard: “A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.” Ideally, this response would omit mediation in cases where domestic violence is discovered. 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.
 

Protecting Victims during Mandated Mediation

In some legal systems, cases involving domestic violence may be subject to mandatory mediation, without allowing victims to opt-out of the process. In these scenarios, advocates and mediators must work together to prioritize victim safety. One report posits that when meditation is mandated in cases of domestic violence, the following six concerns are paramount:

1. Can the screener/mediator properly identify domestic violence?
2. If a mediator identifies domestic violence, how do they respond?
3. How, if at all, are victims protected during sessions?
4. Is the process fair?
5. Are the results fair?
6. Are there safety measures in place to protect victims?[6]

Screening for and Identifying Domestic Violence

Screening for domestic abuse is a necessary component of mediation programs.[7] Court systems should utilize a uniform screening tool for all couples who face voluntary or mandatory mediation. While some courts utilize written questionnaires to screen for domestic violence, research indicates that mediators prefer in-person—or at least face-to-face—interviews in order to establish trust, build rapport, and observe party interactions.[8] Skilled domestic violence advocates should implement the screening process, not professional mediators who have a financial interest in the outcome. Each party should be screened separately.

Screening questions should address physical and psychological abuse of the past and of the present and fear of future abuse, using behaviorally specific questions. Some victims of domestic violence may not apply the terms “violence” or “abuse” to their experiences, but may be more likely to answer questions about specific behaviors.[9] Additionally, screeners should inquire about control, jealousy, the treatment of children and substance abuse.

Although initial screenings are an important tool, mediators and advocates alike should be aware that they may not identify every case of domestic violence. In one study, “there were a small number of cases that were classified as high level IPA [intimate partner abuse] that were not identified by the mediators as such. One-third of the couples classified as non-IPA by the mediator reported at least one incident of threatened and escalated violence or sexual intimidation/coercion/assault.”[10] With this in mind, mediators should continuously be mindful of potential power dynamics and instances of domestic violence that may emerge during the mediation process.[11]

Shuttle or Separate Mediation

One way to enhance protection of a victim of domestic violence during the process of mediation is to separate the parties into different rooms, with the mediator moving between the two rooms during the negotiations, called shuttle mediation. Separate mediation involves the parties appearing in the mediation center on completely different days. In both cases, the victim may be more at ease and she can rely on the mediator to transfer information between the parties.

Importantly, mediators and advocates must be aware that shuttle or separate mediation cannot fully shield a victim from the perpetrator. Perpetrators can utilize a number of tactics that may appear innocuous to the mediator but convey a threat to the victim. He can also continue to threaten or coerce her outside of the mediation setting. Additionally, neither of these forms of mediation will negate the effect of the past fears of the victim, nor her fears of what may occur in the future.

Acknowledging Power Imbalance

Due to the power and control exercised by a perpetrator, mediators will never be able to entirely remedy the power imbalance between the parties. However, mediators may attempt to understand the extent of the power imbalance by meeting with the parties separately to hear their concerns before mediation begins. Mediators must be knowledgeable about the issues of power and control present in domestic abuse, and the many ways in which they may be manifested in the relationship, both by the perpetrator and by the victim.

Efforts to recognize and mitigate the power imbalance can include creating ground rules regarding who may speak, when they may speak and for how long, moderating the discussion and writing down proposed agreements. The best approach, however, is to not use mediation in cases involving domestic violence.