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<xTITLE>Family Violence and ODR</xTITLE>

Family Violence and ODR

by Maria Eugenia Sole
December 2013 Maria Eugenia Sole

We can define family violence as any form of abuse among members of a family. We call abuse to any conduct which, by action or omission, causes physical or psychological harm to another member of the family.

Domestic violence or family violence includes all those violent acts, from the use of physical force, to harassment or intimidation, which are produced in the bosom of a home and the person who perpetrates it is, at least, a member of the family against any other member of the same family.

While conflict is inevitable and inherent to the family, violence is an inadequate manifestation of tensions and conflicts that goes beyond the capacity of response of individuals, due to serious situations of psycho-emotional, socio-cultural or economic limitations. In this sense, violence is the extreme manifestation of the constraints to which families are subjected.

The factors are diverse: the hostility in large cities, economic problems, competition between men and women, pathological family models, the demand by adults towards children to provide them with rewards that they failed to get in other aspects of their life, among others.

Research studies on mediation and abuse reveal the importance of specialized detection procedures.

The behaviors that are considered acceptable in certain communities can be completely reprehensible in others. Definitions of domestic violence and the judgments of value on the perpetrators of such acts vary greatly among those who provide assistance in these cases, as among those who request it.

As operators of conflicts, it is essential that we take full awareness of our cultural conditioning, personal values and tendencies to stereotype, that blind us with respect to signs that abuse is occurring or that there is fear that it might occur.

Nonetheless, there is a noticeable difference in the treatment of cases "of violence" and cases “with violence”. Regarding the formers, mediation can only provide some utility if situations in which violence has occurred symmetrically, while for the latter cases it would not be advisable to work in mediation without previous additional steps, such as the submission of the participants in the relevant therapeutic treatments, the cessation of cohabitation, etc.

Both direct experience and the results of the research indicate that mediation may be appropriate and be beneficial for both partners, provided they respect a code of ethics and specific precautions are to be taken to ensure that:

u The corresponding controls to establish if there is any concern about violence and abuse are made, and if there has been any prior incident

u The details of the procedure and its rules have been widely explained.

u Both parties have agreed to participate voluntarily and after having been informed. The mediators must continuously verify that no partner is participating under duress.-

u Separate waiting areas are available so that no partner may fear to remain in the same room than the other as tension grows between them.

u The mediators have an adequate knowledge of warns for personal protection that courts may dictate.

u Mediation services provide labor conditions and appropriate cautions, including the prohibition to the mediator to work alone in a part of the building and the implementation of a system of emergency call or alarm, in a good status of operation.

Finally, the cases which episodic violence arises linked circumstantially to a family crisis involve a completely different treatment, since the violent pattern is not installed as permanent or stable in the family bond. In practice, these episodes generally related to the crisis of separation are successfully contained by the frame of mediation, such as one of the problems to analyze during the process, generating a useful context of containment.

In this sense, it is not the purpose of this article to sustain the possibility to mediate violence. The ideas developed above tend to respond to the question of whether it is advisable, while the parties carry out appropriate treatments, when violence has already ceased, and cohabitation does no longer persist, to mediate incidents relating those family members, e.g., supplies for the children, or the meetings with the non cohabiting parent.

With regard to the current situation in the Argentina, I propose de lege ferenda, to analyze the possibility of enabling remote or virtual procedures of mediation, thus avoiding the traditional mediation sessions, expressly prohibited by law 26.485. In this way, the presence of both parties in the same physical space could be avoided and through the techniques of empowerment and recognition, transform the conflictive situation of basis into a dynamic that is functional to the treatment of incidental co-parenting issues expected to be addressed in the context of the mediation.

 

Biography


Maria Eugenia Sole is an attorney mediator. She has a Holborn College Diploma in Law of Tort and Law of Contract. University degree in conflict resolution and mediation. Pre-trial mediator with registration granted by the Provincial Direction of Alternative Means of Conflict Resolution of the province of Buenos Aires, Argentina. Aspirant to the Executive Latin American European Master in mediation and negotiation of IUKB-Institut Universitaire Kurt Bösch (Switzerland). Applicant to the postgraduate course on Education and TIC of the Ministry of Education of Argentina. Ambassador of ODR Latin America.



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