Domestic Violence and Mediation
In a previous blog, I addressed the importance of recognizing and identifying signs of domestic violence both during a pre-screening process, as well as continuing throughout the mediation process itself. If a mediator does identify signs of domestic violence in a case at any point before or during mediation, what is the correct way to proceed? It may be safe to conduct mediation when there is a history of domestic violence; however, it is crucial that the mediator be knowledgeable and skilled in understanding this issue, and cautious in how to approach and manage it when conducting mediation.
The safety of both parties must be the primary concern; thus in cases in which if there is ongoing abuse, or one party seems capable of seriously injuring his partner, this is not appropriate for mediation. These types of abusers usually demonstrate a need to control the other partner, and often do not accept responsibility for the abuse. In these cases, the abused party will not be able to advocate for herself in mediation without fearing the response of the abuser, and thus mediation is generally never appropriate.
In cases in which there is not ongoing domestic abuse, and control is not a significant feature of the relationship, it may be appropriate to proceed with mediation. However, the mediator must be trained and highly skilled in understanding the dynamics of domestic violence, so as to understand the inherent power and control issues involved and thus be able to facilitate a safe and effective mediation process for both parties.
The mediator must be cognizant of his or her own ability to remain neutral and to recognize an imbalance of power. In many abusive relationships, the abuse can become such a core part of the relationship, that neither party recognizes the behavior as abuse. So, a mediator’s apparent neutrality may in fact support the couple’s belief that the abuse is acceptable, thus supporting the abuser’s position. Furthermore, since mediation is future-oriented, the process may not invite or encourage discussions of past abuse, which may result in inherently unsafe agreements.
A balance of power between the parties must be established and maintained throughout mediation. This can be done by setting ground rules regarding the structure for discussions, as well as defining acceptable discussion topics. Limiting in-person contact between parties may be helpful, such as conducting mediation through separate in-person sessions or teleconferences. The parties should be completely and regularly informed that continuing mediation is voluntary, and that either party may withdraw from the process at any time, for any reason.
There may need to be discussions regarding the possibility of seeking an Order of Protection, as well as suggesting that the abuser attend anger management treatment or therapy. If there is an existing Order of Protection, the Order may be modified by the Court to allow for in-person contact for the purpose of mediation only. However, if this is not a viable option, the mediation sessions must be structured to obey the existing Order, such as by scheduling separate sessions, holding mediation sessions via teleconference, or making sure the abuser arrives first so as not to violate a Court Order stating that he may not approach the other party.
Regardless of the level or type of domestic violence, it is crucial that the mediator have special skills, knowledge and sensitivity in regards to this issue, as well as an awareness of resources in the community for both the abuser and abused parties. Only then, can the mediator ensure that the utmost care is taken to provide for the safety of both parties and an effective, appropriate mediation process.
Tamara Hirsch, JD, LCSW