Responsible Mediation and Domestic Violence

The statistics are far more dire than many believe. According to the conference speakers (who used statistics from 2000), one in three women will suffer from some physical abuse in her lifetime from someone she knows. Six million American women are beaten each year by their husbands or boyfriends. Four thousand are killed as a result. Child abuse takes place in 70% of the households where domestic violence is also present. Twenty-eight percent of teen girls report some dating violence. It goes without saying that statistics must be parsed out to understand them more clearly: How severe was the domestic violence? Was the abuse persistent, or did it take place only early in the relationship, and then stopped? Was the violence triggered by the separation? Have there been other kinds of abuse such as threats related to children, financial abuse, sexual abuse, stalking, etc.?

Although mental health professionals and the courts have accepted the notion of a 'battered women's syndrome,' according to one expert who spoke at the conference, all victims do not have an identifiable set of characteristics prior to or during the domestic violence, as many believe they do. Victims come from entirely different cultural, religious, geographic and economic backgrounds, and the reactions of each victim can vary greatly, ranging from complete denial, avoidance ' even anger at questions regarding violence ' to anxiety, shame, low self-esteem, depression and suicidal tendencies. This range of behavior can make it extremely difficult, even for the trained advocate, to recognize that a client or potential client has been a victim of domestic violence.

Batterers, on the other hand, have more common behavior: Most avoid responsibility in every way, claiming they are 'under a lot of pressure,' that 'it only happened once,' that 'I was restraining her,' that 'she knows how to push my buttons.' Batterers tend to use the 'best interest standard' for children as their weapon in court, take intentionally contrary positions in negotiations and make strong attempts at controlling children in hopes of gaining further control over the other parent.

Litigation or Mediation?

Most domestic violence advocates argue that only litigation can protect the victim of domestic violence. After all, the courts have legal remedies and sanctions, such as orders of protection, and judges can 'punish' batterers in many ways through incarceration, financial fines, custodial decisions and through equitable distribution. Furthermore, mediation as a process is premised on the neutrality ' or some say the 'balancing' ' of the mediator. Most would agree that one cannot remain 'neutral' regarding domestic violence. Mediation is also premised on both parties having the ability to speak for themselves and to negotiate voluntary decisions with full knowledge of all the facts. Will a victim be comfortable speaking if she is in fear of reprisal? Will the batterer manipulate the mediation process just as he attempts to manipulate the legal system?

On the other hand, litigation can be very expensive and can take a very long time, therefore extending the conflict with the batterer. The non-moneyed spouse may be literally brought to her knees at the reality of the costs and bureaucracy of navigating the court system. The litigation process, by its very nature, creates an even greater adversarial relationship between the parties as each party only 'speaks' through representation and judges have no opportunity to engage in detailed discussion with all parties to allow for a decision that really fits their needs. Studies regarding mediation cite findings that: 'Mediation is a more inclusive process that produces more satisfactory and enduring agreements than adversarial proceedings. [Studies] argue that mediation is more likely than litigation to offer an effective and empowering means of resolving disputes. In fact, recent research suggests that mediation may be effective in reducing abuse.' (Salem P, Milne AL: 'Making Mediation Work in a Domestic Violence Case,' Family Advocate, Winter 1995, Vol. 17, No. 3.)

It should be noted, however, that such studies (as well as professionals in the mediation community) do not suggest that mediation should be employed in cases involving persistent, ongoing, violent abuse, as was the scenario in many cases presented at the New York City Bar's March conference. But it is the 'milder' cases that mediators continue to discuss and disagree about: where the parties reveal some pushing and shoving years ago that never occurred again; where the parties 'resolve' conflict by manipulation, threats or even withdrawal of financial support, but without physical abuse of any kind, or; where the parties sit in a mediation office and tell the mediator that they are completely comfortable speaking for themselves because the 'abuse' does not exist right now and they have outside legal counsel advising them throughout the mediation process.

While the debate continues regarding whether mediation can be appropriate in domestic-violence case of any level, the debate is moot unless there are effective tools to determine when such cases even exist, since research and experience has shown that victims and batterers rarely talk about the abuse. As a result, many community mediation centers around the country have imposed detailed screening processes for domestic violence. They then created specific ground rules for mediating cases involving some domestic violence where the administrators believed the parties could benefit from mediation nonetheless.

Screening procedures discussed during the March conference, and employed by private and community mediators throughout the county, can vary in many ways. In addition to asking standard questions of clients regarding past legal or police action or specific concerns about their case/mediation, the most important information imparted at the conference regarding screening was: 1) Ask questions about abuse during intake, but also throughout the entire process. As the client learns to trust the attorney or mediator, he or she may gather much more detailed, honest information; 2) Ask about specific behavior, such as hitting, pushing, slapping, verbal intimidation, insults, etc., rather than using terms such as 'domestic violence.' Many clients either do not want to admit to 'domestic violence' and/or may define domestic violence in their own way. For example, they may not really believe that pushing and shoving is considered 'violence'; and 3) Ask for specific scenarios regarding how the parties have resolved conflicts in their relationship.

Furthermore, the mediation community ' most often mediators in community mediation centers ' have employed several ground rules for mediating when some domestic violence has occurred: 1) They have the parties sit in different rooms during the mediation; 2) Attorneys attend mediation sessions with clients; 3) Administrators and the victim develop a 'safety plan' where, for example, the parties leave mediation separately, with escorts to their cars; 4) Only the most experienced mediators with training in power balancing are used; and 5) More intensive follow-up regarding enforcement of such agreements is scheduled.

While the issue of whether mediators should take on cases involving domestic violence was discussed only briefly during the conference in March, most attendees would probably agree that it was the constant 'elephant in the room,' and discussed with great concern during breaks. Due to the flaws in both systems, particularly regarding the difficult task in finding mediators, attorneys and judges who are well-qualified to handle such cases, one expert stated that neither litigation nor mediation could possibly be a panacea to the issues facing a victim of domestic violence.

Conclusion

Domestic violence is an unfortunate occurrence in our society, and concerns regarding protecting the victim are significant in either the litigated or mediated divorce setting. Two of the many sponsors of the conference, the Family and Divorce Mediation Council of Greater New York and the New York State Council on Divorce Mediation, have created a joint committee on domestic violence to explore such issues as more effective screening, and will perhaps issue guidelines regarding which cases could be appropriate for mediation. Now that the dialogue has begun, it is hoped that both communities will continue to make a joint effort to learn from each other in settings such as the New York City Bar's conference.

Amy Carron Day is an attorney-mediator practicing family and divorce mediation and collaborative law in Manhattan and Katonah, NY (northern Westchester County). She is also a member of this newsletter's Board of Editors. The author wishes to thank Adam Berner, Esq., an attorney/mediator who made valuable contributions to this article and was one of the primary organizers of the above-mentioned conference.

March 31 of this year marked the start of a potentially interesting dialogue. Family and divorce mediators had a joint, all-day conference at the Association of the Bar of the City of New York with an impressive array of professionals who have regularly worked and advocated for domestic-violence victims for decades. Since the inception of family and divorce mediation, mediators have struggled with the issue of whether cases involving domestic violence ' any kind of domestic violence ' should preclude mediation from occurring. Most advocates in the domestic violence community have been clear for some time: There should be no mediation when domestic violence is involved. Studies show that divorce and separation are dangerous periods for victims of domestic violence, and professionals in both fields want to protect victims' legal rights, as well as their physical and emotional well-being. But is there a process that can protect them to the extent we imagine? The New York City Bar's conference was just the beginning in exploring solutions.

The conference was a true effort to help mediators better understand domestic violence and to help them begin building a stronger relationship between professionals in both the domestic-violence-prevention community and the mediation community. I took away a variety of statistics, information regarding defining abuse, understanding better who an abuser and victim may be, and ' most importantly to me as a mediator ' a greater understanding of how to screen for domestic violence.

Grim Statistics

The statistics are far more dire than many believe. According to the conference speakers (who used statistics from 2000), one in three women will suffer from some physical abuse in her lifetime from someone she knows. Six million American women are beaten each year by their husbands or boyfriends. Four thousand are killed as a result. Child abuse takes place in 70% of the households where domestic violence is also present. Twenty-eight percent of teen girls report some dating violence. It goes without saying that statistics must be parsed out to understand them more clearly: How severe was the domestic violence? Was the abuse persistent, or did it take place only early in the relationship, and then stopped? Was the violence triggered by the separation? Have there been other kinds of abuse such as threats related to children, financial abuse, sexual abuse, stalking, etc.?

Although mental health professionals and the courts have accepted the notion of a 'battered women's syndrome,' according to one expert who spoke at the conference, all victims do not have an identifiable set of characteristics prior to or during the domestic violence, as many believe they do. Victims come from entirely different cultural, religious, geographic and economic backgrounds, and the reactions of each victim can vary greatly, ranging from complete denial, avoidance ' even anger at questions regarding violence ' to anxiety, shame, low self-esteem, depression and suicidal tendencies. This range of behavior can make it extremely difficult, even for the trained advocate, to recognize that a client or potential client has been a victim of domestic violence.

Batterers, on the other hand, have more common behavior: Most avoid responsibility in every way, claiming they are 'under a lot of pressure,' that 'it only happened once,' that 'I was restraining her,' that 'she knows how to push my buttons.' Batterers tend to use the 'best interest standard' for children as their weapon in court, take intentionally contrary positions in negotiations and make strong attempts at controlling children in hopes of gaining further control over the other parent.

Litigation or Mediation?

Most domestic violence advocates argue that only litigation can protect the victim of domestic violence. After all, the courts have legal remedies and sanctions, such as orders of protection, and judges can 'punish' batterers in many ways through incarceration, financial fines, custodial decisions and through equitable distribution. Furthermore, mediation as a process is premised on the neutrality ' or some say the 'balancing' ' of the mediator. Most would agree that one cannot remain 'neutral' regarding domestic violence. Mediation is also premised on both parties having the ability to speak for themselves and to negotiate voluntary decisions with full knowledge of all the facts. Will a victim be comfortable speaking if she is in fear of reprisal? Will the batterer manipulate the mediation process just as he attempts to manipulate the legal system?

On the other hand, litigation can be very expensive and can take a very long time, therefore extending the conflict with the batterer. The non-moneyed spouse may be literally brought to her knees at the reality of the costs and bureaucracy of navigating the court system. The litigation process, by its very nature, creates an even greater adversarial relationship between the parties as each party only 'speaks' through representation and judges have no opportunity to engage in detailed discussion with all parties to allow for a decision that really fits their needs. Studies regarding mediation cite findings that: 'Mediation is a more inclusive process that produces more satisfactory and enduring agreements than adversarial proceedings. [Studies] argue that mediation is more likely than litigation to offer an effective and empowering means of resolving disputes. In fact, recent research suggests that mediation may be effective in reducing abuse.' (Salem P, Milne AL: 'Making Mediation Work in a Domestic Violence Case,' Family Advocate, Winter 1995, Vol. 17, No. 3.)

It should be noted, however, that such studies (as well as professionals in the mediation community) do not suggest that mediation should be employed in cases involving persistent, ongoing, violent abuse, as was the scenario in many cases presented at the New York City Bar's March conference. But it is the 'milder' cases that mediators continue to discuss and disagree about: where the parties reveal some pushing and shoving years ago that never occurred again; where the parties 'resolve' conflict by manipulation, threats or even withdrawal of financial support, but without physical abuse of any kind, or; where the parties sit in a mediation office and tell the mediator that they are completely comfortable speaking for themselves because the 'abuse' does not exist right now and they have outside legal counsel advising them throughout the mediation process.

While the debate continues regarding whether mediation can be appropriate in domestic-violence case of any level, the debate is moot unless there are effective tools to determine when such cases even exist, since research and experience has shown that victims and batterers rarely talk about the abuse. As a result, many community mediation centers around the country have imposed detailed screening processes for domestic violence. They then created specific ground rules for mediating cases involving some domestic violence where the administrators believed the parties could benefit from mediation nonetheless.

Screening procedures discussed during the March conference, and employed by private and community mediators throughout the county, can vary in many ways. In addition to asking standard questions of clients regarding past legal or police action or specific concerns about their case/mediation, the most important information imparted at the conference regarding screening was: 1) Ask questions about abuse during intake, but also throughout the entire process. As the client learns to trust the attorney or mediator, he or she may gather much more detailed, honest information; 2) Ask about specific behavior, such as hitting, pushing, slapping, verbal intimidation, insults, etc., rather than using terms such as 'domestic violence.' Many clients either do not want to admit to 'domestic violence' and/or may define domestic violence in their own way. For example, they may not really believe that pushing and shoving is considered 'violence'; and 3) Ask for specific scenarios regarding how the parties have resolved conflicts in their relationship.

Furthermore, the mediation community ' most often mediators in community mediation centers ' have employed several ground rules for mediating when some domestic violence has occurred: 1) They have the parties sit in different rooms during the mediation; 2) Attorneys attend mediation sessions with clients; 3) Administrators and the victim develop a 'safety plan' where, for example, the parties leave mediation separately, with escorts to their cars; 4) Only the most experienced mediators with training in power balancing are used; and 5) More intensive follow-up regarding enforcement of such agreements is scheduled.

While the issue of whether mediators should take on cases involving domestic violence was discussed only briefly during the conference in March, most attendees would probably agree that it was the constant 'elephant in the room,' and discussed with great concern during breaks. Due to the flaws in both systems, particularly regarding the difficult task in finding mediators, attorneys and judges who are well-qualified to handle such cases, one expert stated that neither litigation nor mediation could possibly be a panacea to the issues facing a victim of domestic violence.

Conclusion

Domestic violence is an unfortunate occurrence in our society, and concerns regarding protecting the victim are significant in either the litigated or mediated divorce setting. Two of the many sponsors of the conference, the Family and Divorce Mediation Council of Greater New York and the New York State Council on Divorce Mediation, have created a joint committee on domestic violence to explore such issues as more effective screening, and will perhaps issue guidelines regarding which cases could be appropriate for mediation. Now that the dialogue has begun, it is hoped that both communities will continue to make a joint effort to learn from each other in settings such as the New York City Bar's conference.

Amy Carron Day is an attorney-mediator practicing family and divorce mediation and collaborative law in Manhattan and Katonah, NY (northern Westchester County). She is also a member of this newsletter's Board of Editors. The author wishes to thank Adam Berner, Esq., an attorney/mediator who made valuable contributions to this article and was one of the primary organizers of the above-mentioned conference.