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.