One of the main advantages of the legal system is its structure, its predictability and, some would argue, its certainty. One of the main disadvantages of the legal system is its structure –the procedural and substantive constraints of a formal adjudicative system. One size does not necessarily fit all.
A.D.R. processes including but not limited to mediation, breathe flexibility and hope into the legal process and, by offering options to litigation, bring the promise of differentiated, needs accommodating and party driven processes and solutions. “Today, ADR processes are tailored to respond to the unique needs of the participants, the particular context and history of the dispute, and the specific settlement obstacles presented, as well as practical and institutional constraints. This has produced an array of hybrid processes combining elements of evaluation, adjudication, negotiation, and mediation, free from any rigid definition or preconception about what a dispute resolution process must look like.” (“Hybrid Processes: Using Evaluation to Build Consensus”, Ellen Zweibel, Faculty of Law, University of Ottawa, in Dispute Resolution, Readings and Cases, 1999, Emond Montgomery Publications Limited, Toronto, Canada.
This is particularly relevant in conflicts where there are concerns about power imbalances, and more so in the family context. In her book Dispute Resolution, Readings and Cases,1999, Emond Montgomery Publications Limited, Toronto, Canada at p. 351, Dr. Julie MacFarlane notes that
Different, additional considerations arise in family conflicts. An influential body of scholarship argues that mediation is inherently unsuitable as a dispute resolution mechanism where the parties are significantly unequal. That difficulty is exacerbated in family disputes, where the personal nature of the parties’ relationship means there is the potential for entrenched, and sometimes disabling, power dynamics. As a consequence, there is a heated debate about the appropriateness of mediation for family disputes, much of which focuses on the systemic power imbalance between men and women in many family relationships…On the other hand, it is also argued that a consensual process in which both process and outcome can be controlled by the parties themselves is more suitable for resolving acrimonious interpersonal issues than an adjudicative one.”
In her article “Family Mediation”, (A. Stitt, ed., Alternative Dispute Resolution Practice Manual [Don Mills: CCH Canadian, 1996], at 3122-29 and 3132-35), Barbara Landau notes that there are significant advantages to engaging in mediation particularly where there are ongoing relationships:
- reduction in tension benefits children
- improved communication
- timely resolution
- structure and clarity in parenting plans
- more control by the parties
- less formality
- less expensive
- increased commitment to the result.
Over the many years of my practicing family law, a great deal of my practice has been focused in matters where addiction or family violence are factors. This was the result of a natural progression in my professional life which is rooted in a number of life events, most notably that I am a survivor of family violence, as are my children. We have each been witnesses in the other’s lives as well as to the differing impact of family violence on each member of the family. Each member experienced the family violence differently and the impact has been different for each of us. As my children have grown into adults, it is only now that a surprising and open discussion has occurred with some of them communicating their own awareness and insight as to how each of us has processed our experience and tried to promote healing differently.
“Domestic violence is a pervasive problem that devastates all family members, and challenges society at every level. It violates our community’s safety, health, welfare and economy by draining billions annually in social costs such as medical expenses, psychological problems, lost productivity, and intergenerational violence”. (“Family violence in Child Custody Statutes; An Analysis of State Codes and Legal Practice”, The Family Violence Project of the National Council of Children’s Advocates, at p. 209.)
The children of these relationships are at high risk of emotional and behavioral dysfunction and social maladaptation due to the chronic parental conflict and their witness to hostility and violence. This is also something that our family struggles with and I, as a mother in particular. My children didn’t ask to be born and although I did not choose to be abused, I did choose my partner. I struggle with the choice I made every day and the impact of that choice which has been visited upon my children.
Having also been engaged in litigation with my former partner and having experienced this process as a survivor and a mother of survivors, I have a perspective and understanding that I strive to bring to my litigation practice and mediation practice. The victims of domestic violence are vulnerable, can feel powerless and look to the legal and professional communities for support and guidance.
One of the most significant struggles that I have experienced personally and then also professionally, is the view that if family violence is a factor then mediation is not (which is different than “may not be” ) an appropriate process for resolving disputes. I can tell you that as a person going through a separation where family violence is a factor, I was never asked, what process I thought would be appropriate for me and my family, what process would make me feel safest given my unique knowledge of my partner, his history, our history, my children and also, the fact that three of my children were born of an earlier relationship with a partner who was not abusive and who was concerned for his children and that I needed to navigate those trepadatious waters. I was told (rather than being educated about the options available and the pros and cons of each) by well intentioned professionals what process was best for me and my family and how we would be proceeding. As the litigation was initiated, the pattern of controlling and coercive behavior and incidents of violence and breaches to the protection order escalated. I had an appearance where I was told by the Judge in essence that because my former husband beat me did not mean that he would (although he already had and would again) beat my children. Before a Final Order was even entered, I was feeling exposed, unsafe, further victimized and this led me at one point to agreeing to meet with my former partner in a public place to try to mediate things out ourselves which was the only option I other than litigation that I felt I was left with.
As is indicated throughout the literature, “the dynamic of power relations in the bargaining process is not limited to the mediator’s exercise of power, but includes the relative power of the disputants themselves…One of the most significant critiques of the mediation process is that its informality and lack of outside controls allow a more powerful party to overwhelm a less powerful one and thus impose a disadvantageous agreement on the weaker party.” (Dispute Resolution, Readings and Cases, 1999, Emond Montgomery Publications Limited, Toronto, Canada, p.420-421)
Bernard Mayer notes that one of the major criticisms of mediation and related collaborative or cooperative approaches to the resolution of conflict is that “they do not necessarily promote social justice or protect the unempowered. Unless all the players in a problem-solving process have sufficient power to represent themselves effectively, a collaborative process can easily result in an unjust conclusion. Advocates for victims of domestic violence have been concerned that mediation may lead to further victimization”. (The Dynamics of Conflict Resolution, A Practitioner’s Guide, Bernard Mayer, Jossey-Bass Inc. Publishers, San Francisco, 2000, p. 67)
When discussing or expressing concerns about power imbalances, it is important to consider that power is not a measurable quantity:
…the idea that power can be balanced so as to produce some equality or even equivalence of power is very misleading. Such a way of viewing power fails to account for the dynamics of power and the interactional context in which power must be understood. Instead of thinking that people need an equivalence or equality of power, we might more usefully think that people need an adequate basis of power to participate effectively in conflict. They require enough power that others must at least consider their concerns and enough power to resist any solution that fundamentally violates their interest. (Ibid, p.52)
It is my respectful view and experience that where there is proper screening; where the professional has the relevant training; where the professionals are live to safety (emotional and physical) and process issues and where the individual chooses mediation and is able to negotiate effectively and productively, safely, voluntarily and competently towards a fair agreement, that choice should be effected. That does not mean that there is an equal sharing of power, that is if power is even quantifiable, but that each party has an adequate power base.
There are many, however, who continue to be of the mind that where domestic violence is a factor, mediation is never appropriate. As a victim, when that choice was taken away from me, I felt further victimized. I did not feel protected. I felt demeaned by the assumption that as a survivor of abuse I had somehow lost all of my power; my ability to advocate for my own best interests and those of my children; that I had no option but to resolve my conflict which was already fraught with shame in a public forum (family documents are public record in Manitoba) and particularly so given that all of this would play out in my professional back yard.
The use of mediation in cases involving domestic abuse has kindled heated debate. I can personally attest to the fact that the legal process, however, does not always provide reasonable or safe alternatives for families either.
Domestic violence is:
- affecting a wide range of victims without regard to socioeconomic status, culture, race, age
- varies in degrees of severity
- is not limited to physical assault but spans a continuum of behaviors including isolation, threats, intimidation, and emotional, sexual and economic abuse
- is a control mechanism
- is not and should not be treated as a private matter.
(”Victim at home, victim through mediation, When Domestic Abuse is an Issue”, Ann L. Milne, Peter Salam and Kristin Koeffler, Family Advocate, Spring 1992, p. 34)
It is a fact that the cases that go to trial and are reported are just a “tiny fraction of all the cases in which parents have separated and there are spousal abuse issues. The cases involving survivors of abuse who go to trial are not typical; they tend to be those where victims have the most effective or supportive counsel, or where the women have the emotional strength to withstand the pressures to settle” (“Wife Abuse and Family Law in Canada”, Martha Shaffer and Nicholas Bala, p. 18, submitted to the Journal of Emotional Abuse, edited by Robert Geffner). This fact in of itself is an argument for the advocacy, design and implementation of a differentiated alternative dispute resolution process for these types of high conflict cases.
The one point where there seems to be agreement in the literature amongst advocates, counsel and alternative dispute resolution professionals are that where there is family violence (defined in the Family Law Act as: “family violence“ includes:(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (b) sexual abuse of a family member,(c) attempts to physically or sexually abuse a family member,(d) psychological or emotional abuse of a family member, including(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,(ii) unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,(iii) stalking or following of the family member, and(iv) intentional damage to property, and(e) in the case of a child, direct or indirect exposure to family violence;), that family violence is a significant factor to consider when choosing a process to resolve family conflicts. It is noteworthy that despite the progress with respect to the education and definition of family violence, there are still those within the legal profession who relegate that definition to physical violence and who do not accept that if there was no modicum of physical abuse that the person was a victim of family violence.
Milne, Salem and Koeffler (Ibid) point to the following disadvantages in each process (also based on Mnookin and Kornhauser “Bargaining in the Shadow of the Law: The Case of Divorce” 88 Yale Law Journal, 950, 1979):
A. The Legal System:
- costs of litigation;
- pain of formal adversary proceeding;
- risks and uncertainties, which involve all or nothing consequences;
- abuse often remains unidentified and unreported by the victim;
- victims frequently have difficulty identifying their own interests;
- to preserve their own safety, victims may place the batterer’s needs ahead of their own;
- Victims may have limited access to economic resources and many cannot afford adequate legal representation particularly as many of the lawyers who represent women in these cases lack the training and resources to deal adequately with them (see also “Wife Abuse and Family Law in Canada”, Martha Shaffer and Nicholas Bala, p. 19, submitted to the Journal of Emotional Abuse, edited by Robert Geffner”);
- Even if abuse is identified, support services retained and the victim’s needs clearly identified, meeting those needs is not guaranteed;
- Judges rarely limit a father’s access to the children unless there is evidence that he has/is abusing them as well (Shaffer and Bala, Ibid, p. 13);
- It is difficult for a court to impose and enforce supervised visitation (and see Shaffer and Bala, Ibid, p. 18);
- Allegations are minimized or viewed as an adversarial tactic when the abuse is an isolated physical incident, is emotional or verbal in nature or occurs in the context of a contested divorce;
- The negotiation process is so heavily influenced by court precedent that the victim who is seeking remedies such as limited or supervised visitation may be at a disadvantage during negotiations;
- The level of funding per case is inadequate for the complex demands of these cases (Doucette, 2001; in Shaffer and Bala, Ibid, p. 19).
- Mediation may trivialize the crime of abuse and result in agreements that are informal, unenforceable and inappropriate for children;
- Requiring parties to enter the same building and sit in the same room can compromise victims’ safety;
- Mediator may not be aware of the violence and therefore cannot offset the power imbalance;
- An abuser’s private but well-calculated glance at the victim can be a powerful and controlling reminder of past violence and future consequences.
Milne, Salem and Koeffler point out that the implication is that legal advocacy may yield a superior outcome. This is contradicted however they note by the experiences of many survivors, which suggest that the same problems pervade the legal system.
A case study conducted by Shaffer and Bala that reviewed 45 reported Canadian family law cases found that “there continue to be problematic judicial statements about spousal abuse, and questionable approaches to some of the cases that raise spousal abuse issues”. One of the most important findings of this study was that in the absence of medical records, police reports or witnesses to the abuse, judges may have difficulty finding that abuse occurred and in fact, this was mentioned as a problem in some of the cases:
In part this may be a function of the law’s requirement that the person making an allegation of abuse prove it to be true on the balance of probabilities (the equivalent of the American standard of proof on a preponderance of evidence. Often the only adult witnesses to spousal abuse are the spouses. While children often see or hear spousal abuse (Statistics Canada, 2001), there are a variety of evidentiary and ethical concerns about calling them as witnesses. Absent evidence corroborating the woman’s allegations, judges may be reluctant to find that abuse occurred. Since many women do not disclose their abuse or report it to doctors or call the police (Statistics Canada 2001), it may be difficult to prove in many cases; and since many judges perceive abuse as being restricted to physical violence, where the abuse is emotional or verbal, courts may have difficulty even conceptualizing the conduct as abusive, viewing it instead as mutual conflict or disagreement.
Professor Nicholas Bala, in his comprehensive dissertation advocating for a differentiated approach to custody and access disputes where domestic violence is present, states:
There is a need for all professionals who work with families affected by separation and divorce to have knowledge, understanding and sensitivity about issues of spousal abuse. There must be awareness of the different forms, nature and effects of spousal abuse, and an ability to help develop appropriate, differentiated responses, in particular in regard to children. (“Spousal Abuse in Custody and Access Disputes: A Differentiated Approach”, Nicholas Bala, Queen’s University, 1998, at p. 2) and at p. 20:
“All justice system professionals who work with divorcing couples, including lawyers, judges, police, assessors and mediators, need the knowledge and training to deal effectively with situations where spousal abuse is at issue, and in particular should be aware of the risks faced by victims of abuse and their children. These professionals must appreciate that spousal abuse covers a broad range of conduct. While physical abuse represents the most obvious danger, emotional abuse can also be extremely destructive.
Given the wide range of abusive spousal conduct and the high portion of separations and divorces that involve at least one incident of spousal violence, the justice system and the professionals who work in it need to develop differentiated responses that take account of the specific situation of abuse and its effect on the particular parents and children involved.”
In addition to knowledge, understanding and sensitivity as indicated above, a set of rules which not only addresses the needs of mediation as a consensual decision-making process but those which address procedural safeguards must be followed. If not, the risk is further victimization and this is a risk, which cannot be assumed.
Practitioners, particularly where domestic violence is a factor and where escalation of conflict could be dangerous or even lethal, must turn their minds to the “details” of the process which include available resources, decision-making procedures, time constraints, communication procedures and physical settings. The physical setting can play an important part not only in terms of safety but also in terms of providing a more cooperative atmosphere as opposed to one which is adversarial.
There are serious risk issues involved in abuse cases that cannot be minimized or overlooked. These cases should only be handled by professionals who have special training and use processes that use policies and procedures specifically designed to address safety issues.
Mediators who work with these cases play a valuable role by identifying risk factors that have historically been associated with violence.
Expression of Feelings
Taylor and Magana (Ibid at p. 54) point out that the process provides an opportunity for the batterer to vent and express feelings that is integral to any long-term resolution of the conflict and issue of violence. Taylor and Magana (Ibid, p. 54) assert that, “an interview with a well-trained mediator can provide at least one safety valve for the expression of the perpetrator’s grief and anger during the dissolution process. Sometimes, he can be helped to refocus his concerns on his children’s needs, including their need to have a relationship with him and to stop seeing violence between their parents. This interview can also serve as another means to assess the potential for future violence. The extent to which a batterer is able to express grief, accept responsibility for the violence, and focus on his children’s needs, rather than remaining focused on feelings of anger toward the mother, may be an indicator of the extent to which future violence can be abated.”
The expression of feelings during separate interviews is particularly important given as Bernard Mayer points out in his book The Dynamics of Conflict Resolution, A Practitioner’s Guide, Jossey-Bass Inc. Publishers, San Francisco, 2000, p. 11, that a direct expression of feelings may escalate conflict. The expression of feelings in a separate interview allows for the discussion of feelings in a safe environment for both parties. Mayer also notes that while emotions fuel conflict, “they are also key to deescalating it…The art of dealing with conflict often lies in finding the narrow path between useful expression of emotions and destructive polarization.”
Also, as indicated above, mediators/facilitators can be impartial and unbiased towards the parties and nonetheless condemn violence and aggression providing a code of conduct and a safety mandate, which is non-negotiable. There are a number of procedural safeguards in place in various programs that deal with cases where domestic violence is a factor that includes:
- intake schedules to be set a different dates and times
- separate group orientations
- parties do not attend mediation sessions together
- abuser must arrive first and leave last
- victim must have an escort
- shuttle mediation and caucusing are the norm
- gender neutral mediation teams (male/female)
The strongest and most useful comparative in this process is that of the neutral fact-finding team. The team consists of one male and one female. The presumption is that the accuser may be more comfortable talking to a person of the same gender and likewise for the female. This assumption is made with equal veracity and perhaps more so in cases where there are power imbalances in family disputes, particularly where domestic violence is a factor. The theory is that a male-female team brings a balanced perspective and mitigates any issue of bias.
The advantages of mixed-gender teams include:
- outside of the interviews, the team can use the other member to deepen its understanding of the other gender’s perspective and support;
- particularly sensitive questions can be asked by the same sex interviewer;
- the interviewee tends to make eye contact with the same sex person while answering sensitive questions, thus easing the tensions inherent in discussing intimate/sensitive subjects.
Magana and Taylor point out that “a male/female mediation team is used to insure both a male and female perspective in assessing these difficult cases. In addition, each client may relate better to a same sex mediators.”
Screening and Training
For various reasons, many victims do not disclose the abuse. This is common and is such a significant concern that all family mediators and particularly those engaging in mediation where the dispute is characterized by high conflict, must use effective screening programs which include a thorough review of the court file which may contain restraining orders and other evidence of abuse; confidential intake questionnaires completed by each spouse; confidential, individual intake sessions and/or caucuses.
Screening and training are inter-dependent in as far as the ability of those carrying out the screening to detect signs of violence or intimidation and to address the consequences or consequential power imbalance and related dynamics particularly where the information is not volunteered will be very much dependent on background, education and training with particular regard to the dynamics of domestic violence.
It is important to recognize that although the signs of abuse may not be evident at the outset, nor disclosed, as the mediation process progresses, screening will have to be consistently re-evaluated. This is imperative given that case studies reveal that in many situations abuse continues post separation including stalking, physical assaults, emotional manipulation and serious attempts to denigrate and undermine women’s parenting abilities and further that violence tends to escalate post-separation (see Bala and Shaffer, “Wife Abuse and Family Law in Canada”, p. 8 submitted to the Journal of Emotional Abuse, edited by Robert Geffner)
Girdner’s screening model, “Mediation Triage: Screening for Spouse Abuse in Divorce Mediation”, Mediation Quarterly, Vol. 7, No. 4 (Summer 1990) sorts divorce-related disputes into three categories: a) those persons likely to benefit from mediation conducted as usual (no abuse identified) b) those likely to benefit from mediation conducted with specific ground rules, resources and skills and c) those who should be excluded because they are more likely to experience harm.
Where there is family violence and the parties choose an alternative to litigation, the process should be a hybrid or differentiated approach that integrates special skills, ground rules, and interventions which include separate sessions, shuttle mediation, telephone mediation and frequent caucusing all used to ensure safety and to impede attempts to intimidate, coerce or manipulate. (Opcit)
There is as of yet no established or universally applied standards of mediation practice in cases where domestic abuse is a factor. While professionals in the alternative dispute resolution field and women’s advocates continue their efforts at dialogue and collaboration, as indicated above, the heated debate as to if, when and how an alternative process could or should be adapted and practiced safely and fairly when abuse is a factor, continues to rage.
Nevertheless a number of protocols have emerged to address safety concerns, cultural concerns and family needs, and as a result, mediative processes could be and should be recognized as a suitable and viable option. CLEBC and Mediate BC offer family violence screening training that in my view ought to be a mandatory course for any family law practitioner and every member of the bench.
As professionals, we must recognize that abuse can significantly impair or diminish a person’s ability to mediate. Consequently, pre-screening is an essential and integral step prior to any family mediation in order to screen for abuse and its effects.
I strive to maintain a 2 tiered screening process, where I pre screen the parties and stay live to ongoing screening during the mediation but also insist that the lawyers who know their clients better than I do, also screen their own clients prior to committing to the mediation process. The screening by the lawyers should be in close proximity to the mediation. It is, in my respectful view not sufficient to rely upon the screening that was completed when the client retained.
The adoption of safety provisions or provision of specialized mediation do not on their own make mediation in abuse cases appropriate. The fundamental principles guiding a decision to mediate/not mediate include:
- that mediation do no harm and be seen to do no harm
- that all reasonable steps should be taken to ensure that no one is put at risk by offering a mediation service, recognizing that safety can never be unconditionally guaranteed,
- that risk and safety assessment may require the denial or termination of mediation, and
- that minimizing risk and maximizing safety is require at every stage of the mediation process and is equally crucial during intake and at the point of termination. (Report from the Toronto Forum on Woman Abuse & Mediation, p. 19)
As a mediator working with parties where family violence is a factor, you must assume the following responsibilities where abuse and violence are factors:
- the duty to warn clients, colleagues and others of threats to kill, injure or harm;
- the duty to protect BOTH clients in as far as referrals to community and professional resources for both the batterer and the victim; and
- the duty to report (to police and child protection agencies). (Ibid, pp. 19-20)
The specific protocol guidelines relating to safety and specialized mediation include:
- that the minimization of risk and maximization of safety are principles which direct the development of all protocols, interdisciplinary collaboration and research on the effectiveness of mediation, alternatives to mediation and supporting services;
- SAFETY FIRST – safety above all and plans and practices must be planned and in place BEFORE the initial client contact which includes addressing issues of environmental safety (e.g. spacious rooms which are cleared of all items which could be used as weapons, conference tables which act as barrier; supplemental, private rooms; visible and accessible presence of a peace officer; exits; availability of other staff; availability of third party escorts; appropriate safe, separate waiting areas, etc..), education and training of common referral sources such as attorneys and health professionals, pre-screening process, and protocols in place;
- Clerical staff/intake workers must be equally educated and trained in domestic abuse and should be able to put that knowledge into practice in the event that this is required to secure the safety of clients;
- Prior to the commencement of the mediation, a safety plan for the victim should be in place which is individualized to address the mediation itself and the victim’s safety needs;
- As previously indicated, safety and screening issues are issues which are revisited again and again throughout the mediative process and all obligations relating to safety are also ongoing obligations;
- Specialized or differentiated mediation requires and demands the use of specialized and specific skills, strategies and interventions and practitioners must be knowledgeable of these and competent in the implementation and practice of these as well including:
- suggesting that the woman arrive ten minutes after her partner and leave ten minutes earlier and assisting her to do so
- asking the woman if she would prefer to be seated closer or further from the door
- not seating the parties opposite each other
- placing the mediator’s chair closer to the abused person
- setting ground rules for conversation between the couple to reduce fear and intimidation
- establishing and clarifying signals to communicate feelings of intimidation or desires to end a discussion or stop the session
- allowing the abused person to leave mediation without urging her to continue
- minimizing power differences by such techniques as encouraging the abused person to take agenda notes
- caucusing to explore fears and other feelings safely and openly
- shuttle mediation
- co-mediation with female and male mediators
- encouraging the active participation of attorneys during the session
- allowing the presence of an advocate or support person and
- discussing what ought to happen if violence recurs or if agreements are not kept
- the practitioner should always keep in mind that abusers might unduly protract the mediation process to secure continued access to their partners, pressure reconciliation or coerce concessions. This can compromise the safety of the victim.
(Ibid, pp. 20-23)
SAFETY AND THE CLOSURE/TERMINATION OF MEDIATION
The termination of mediation has inherent consequences for the abused and children and potentially for practitioners and support staff as well. The Report recommends the use of specialized strategies for termination including:
- utilizing the abuser’s language and information, when appropriate, as a reason to terminate mediation, ensuring that the victim is never blamed for termination;
- enabling the abuser to decide for himself that mediation is not suitable or likely to be productive;
- eliciting from the victim his/her and/or his/her children’s particular safety needs at the time of termination;
- when possible, working with the abuser to develop a termination strategy;
- allowing the abused person to leave the place of mediation first and delaying the abuser’s departure.
The principles enunciated by the Report in this section, speak to the legal community, the alternative dispute resolution community and our socio-economic community as a whole. These principles or directives can be summarized as follows:
- Provide Alternatives-this is inextricably linked to Access to Justice
- Dedicate Resources
- Provide Education so as to allow for Informed Choices
- Legal Representation is a critical to ANY dispute resolution process and such representation should be economically accessible (L.S.S. must be properly funded; lawyers should be volunteering at Pro Bono Clinics and with Access Pro Bono; lawyers should offer limited retainer arrangements and opportunities for coaching)
- Safety is Paramount and funding should be secured and dedicated to ensure that safety requirements are met
- The Best Interests of the Children and their needs particularly in the context of cases where domestic violence is a factor is the primary consideration and children should actively participate in any assessment process
- Court-mandated or referred mediation should automatically allow for exemption from those processes where there are issues of abuse. Courts and/or private mediators may however establish and implement specialized or differentiated systems for these cases where careful screening has determined that they are preliminarily appropriate for specialized mediation. The Courts and these processes must work together to provide for court directives (including orders of custody, leaving access to be determined in the mediative process), protection orders, shuttle mediation, protected access and egress and conditions precedent to mediation related to financial disclosure, participation in specialized counseling programs and representation by counsel
- Finally, the professional practice of family dispute resolution in the context of family violence should require training and certification of intake staff, mediators, arbitrators, lawyers, guardians ad litem, court personnel and the judiciary.
(Ibid, pp. 23-30)
Rather than adopting a zero tolerance screen-out view, I encourage a rebuttable presumption against the use of mediation and rebuttable only if parties to mediation are able to negotiate safely, voluntarily and competently in order to reach a fair agreement. Further, “if the level of domestic violence is sufficient to jeopardize a party’s ability to negotiate without fear or duress, the case should not be mediated. The criterion should be the victim’s ability to participate effectively.” (“Domestic Violence Policy: Lessons Still to be Learned”, Barbara Landau and Niki Landau.
With particular regard to the mediation, and further a specialized process, this process requires time and resources and cannot be effective nor more importantly provide the safeguards required without either. Time is necessary for obtaining a history, screening, planning and implementing safeguards, addressing power imbalances and finally the design of an appropriate agreement or failing which, the effecting of a safe termination. Time is particularly important at the beginning of the process when it is being determined whether parties are participating voluntarily, are able to make informed decisions free from duress and in a SAFE environment. There is no compromise or the process is compromised and from that flows risk to the safety of the parties and their children.
Cuts to Legal Aid Programs nationwide and the stringent application of financial criteria without regard to personal circumstances have deprived victims of legal representation which is critical and has led many of the victims to feel as though they have no option but to participate in an alternative process where disclosure of family violence is often not made or the practitioner or process itself is not designed to ensure that parties are informed and safe and that outcomes are fair and appropriate.
There is an urgent need for training and education for all members of the professional practice of marriage dissolution (including but not limited to legal support staff; lawyers; mediators; arbitrators and respectfully also the members of the judiciary) to address questions of voluntariness, power imbalances, informed consent, presence of threats and coercion and the further training and knowledge of abuse, its dynamics and the consequences that flow therefrom.
Salem , Milne and Koeffler, at p. 39 (Ibid) conclude with what is, in the writer’s view the strongest argument for advocating a differentiated process for high conflict family cases where family violence or other power imbalances are present:
You can also help your client identify her needs and interests, empower her by encouraging her to advocate for herself, and help her make informed decisions. This may be the first time the victim has felt she had options and choices, which are empowering. Having the options to mediate or not and to accept or reject a proposal are basic principles of mediation.
The right to choose should be a basic and well-accepted principle. Those who advocate that mediation or alternative processes are not appropriate where abuse is a factor take that choice from the victim, further disempowering the victim, reinforcing low self-esteem, supporting the status quo that the victim cannot or should not make decisions for his/herself. The advantage of a specialized or differentiated approach is that it does not take away the right to make decisions that the victim feels are best for the victim and the children.
One further principle should be kept in mind when dealing with any conflict, but particularly high conflict cases. Mediation without agreement, can still be a success. The parties may still walk away with notable benefit. If by participating in the process, the parties walk away knowing that their conflict has been moved along a constructive path, this is success. If the parties walk away having learned constructive, productive and safe ways to deal with conflict, the process is successful. Further, the parties may gain a clearer perspective of each other’s interests and perspectives, issues may be clarified and the parties are humanized and perhaps a partial agreement is reached or at minimum where a good faith effort has been made, greater benefit may be derived when they return to the process later in the trajectory of their dispute. (Deutsch)
The agreement is important but it should not be the ultimate goal. The key to the success of an agreement is that the parties are able to keep it. Being able to manage what is likely to be at times, continued conflict, will be essential to the maintenance of the agreement. A credible process conducted in an impartial manner can be extremely valuable to the disempowered. Unfortunately, as Bernard Mayer describes, this process is simply an attempt to help the parties “find a Band-Aid to stop the bleeding”…help them survive…and that is always better than the alternative.