Domestic Violence and Child Abuse: Neglect Screening for Domestic Relations Mediation

I. Purpose & Presumption Against Mediation
This screening protocol is designed to identify parties involved in divorce or child custody actions for whom mediation may be inappropriate because of domestic violence or child abuse, and to maximize safety and fairness in the mediation process. Mediation presumes that participants can maintain a balance of power with the help of a mediator in order to reach a mutually satisfactory resolution of a dispute. The mediation process and resulting agreement can be dangerous and unfair if the imbalance of power is great or if the imbalance is unrecognized.

When domestic violence is present among parties in a dispute, the abuser’s desire to maintain power and control over the victim is inconsistent with the method and objective of mediation. Fear of the abuser may prevent the victim from asserting needs, and the occasion of mediation may give abusers access to victims, which exposes the victim, the children, and the mediator to a risk of violence.

Mediator neutrality may support the abuser’s belief that the abuse is acceptable. The future-orientation of mediation may discourage discussion of past abuse, which in turn invalidates the victim’s concerns and excuses the abuser. This may result in agreements that are inherently unsafe.

Mandatory referral to mediation by the court may communicate to the abuser and the abused that the violence is not serious enough to compromise the parties’ ability to negotiate as relative equals. This message also may invalidate the seriousness of the abuse, dilute abuser accountability, and result in unsafe agreements.

When domestic violence is present, the case should be presumed inappropriate for mediation.

The decision whether to order, initiate or continue mediation should be made on a case-by-case basis.

Parties should be fully and regularly informed that continuation of mediation is a voluntary process and that they may withdraw for any reason.

Comments

Caitlin	12/13/07
I wish Jennifer from VA had stated her affiliations/vested interests plainly...seems only right and honourable thing to have done. Never mind, it becomes clear later. I'm shocked two times by her comments: First of all, I can't fathom why she puts such an inappropriate and intolerable burden on victims. Does she believe that they spring, Athena-fashion, out of hugely traumatic events fully formed and armoured in safety, security and peace of mind? As glib, rehearsed, self-justifying, self-exculpatory and plausible as their abusers? How many assessments and interventions does the victim have to endure? Mediation is more than likely to be a damaging exercise in powerlessness, with poorly trained mediators no more able to 'disempower' the perpetrator than they are to 'empower' the victim. What balance can be achieved? None, as there is no level playing field in domestic abuse. Jennifer should know this, as the past 2 decades' research into the inappropriateness of mediation in cases of domestic abuse has lead to significant policy and legal changes.... Secondly, although I realise that it was written 6 years ago, I'm shocked again that a responsible website (or is this a presumption too far?) gives those highly suspect words the final say. After all, I didn't encounter this website with a Google "products" search... Apart from domestic violence, there is only one other realm of existence in which the victim is so persistently pursued, so relentlessly and shameless revictimised with the connivance of the system (courts, social workers, lawyers, police, et alia): sexual abuse. No other victims of crime are made to interact with their abusers as the victims of domestic violence are. Indeed, it is not infrequent that victim and abuser are seated within arms length of one another and even left alone during the mediation session. If mediators want to contribute to this sorry state of affairs, you have that choice, naturally, as I wouldn't dream of disempowering you. Add New Comment

Jennifer ,   Luray Va	07/01/01
I would just like to comment that for some women, even when domestic violence is present in the relationship, mediation can be very empowering. Of course proper safety precautions should be taken such as meeting for the mediation at the court house or near the sheriff's department, etc. The screening of both parties can set the tone for the mediation and let the abuser know they are being held accountable. I have found that many women are not afraid of their abusers even though they have been hurt by them and they welcome the opportunity to present their thoughts and feelings about their children to the father in a safe environment. Sometimes it is the first time they feel he is really listening. I screen on a case by case basis with the following questions. Domestic Violence Screening Tool Questions to ask the potential abused partner: 1. Has there been any other litigation between the two of you? Explain. 2. Do you or your spouse/ex-spouse have a prior record of any criminal or child abuse charges or convictions? 3. Have you ever called the police, had a protective order issued on your behalf by the court, or sought help for yourself as a result of abuse by your ex-partner? If so, did the abuser abide by the order? 4. Are you fearful of your spouse/ex-spouse for any reason? If you discover at this point that domestic violence is an issue in this case, and the person being interviewed wishes to pursue mediation, continue with the following questions to determine if the danger is too great. 5. Past abuse assessment: Was the abuse frequent, injurious, involve weapons (including firearms, motor vehicles, knives, blunt instruments), multiple sustained acts of violence, witnessed by the children, established patterns of coercive control? 6. Separation violence assessment: When you left your abusive partner: a. Were you stalked or harassed by him? b. Did the past violence continue or increase or become more frightening in other ways? c. Did you feel pressured or intimidated to the point of feeling that it would be safer to return to the abuser rather than pursue separation? 7. Risk of future violence: a. Has the abuser made threats of homicide or suicide? If so, has he actually attempted or planned either? b. Do you feel your ex-spouse is risking his own personal safety or social or legal adverse consequences in pursuit of you? c. Is your ex-spouse using or threatening to use firearms against you or the children? d. Do you presently have a protective order against your ex-spouse so that his access to you and the children is limited or prohibited? 8. Would you like to have an advocate or other support person with you during the mediation sessions? 9. Can you identify any protections necessary for you to feel safe in participating in mediation? 10. Can you identify protections you would want in an agreement over custody either for you or your children such as limitations on the abuser’s access to you and the children, protected exchanges of the children for visitation, supervised visitation, posting of a bond by the batterer to assure that he will comply with the terms of the agreement, batterer or anger management counseling, prohibitions related to drug or alcohol consumption, and any costs resulting from carrying out the agreement assigned to the abuser? 11. Do you believe your ex-spouse will agree to abide by an agreement with conditions on his access to you and the children or that includes firm protections against future abuse? 12. Can you assert a claim against your abuser’s interests without feeling intimidated? Or, in other words, do you believe you can communicate with you abuser on an equal basis in mediation sessions? Questions to ask the potential abuser: 1. Are you feeling any despair over the ending of your marriage or relationship with the other party? Can you imagine your life without your ex-partner? 2. Can you visualize a parental role independent of the relationship with your ex-partner? 3. Are you being or have you been treated for depression or any other mental illness? How recently? Are you taking any medication for this? 4. Do you consume drugs or alcohol on a regular basis? Has your use increased since separating? 5. Are you able to cooperate in pursuit of a fair and safe agreement through mediation? 6. Can you engage in arms-length, non-coercive negotiation? 7. Can you cooperate in carrying out the terms of a fair agreement even if it contains conditions that would restrict your access to your ex-partner or your children or include firm protections against future abuse? One last note: Regardless of domestic violence, most judges where I live still expect the parents to work out some sort of parenting plan for their children. If mediation is used, she will have a better chance of tailoring a plan that is safe for her. Add New Comment

The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.