Tuesday, October 12, 2021
Moving Beyond Screening: Mediation and Intimate Partner Violence
Historically, divorce mediators have been encouraged to screen out cases involving intimate partner violence. This approach presumes that mediation would harm rather than benefit victims of intimate partner violence (“IPV”). Lawyers and IPV Advocates have also been discouraged from allowing their clients to participate in mediation when there are allegations of IPV, based on the same presumption. However, isn’t it possible that we are doing a disservice to our profession and to families who have experienced the trauma of intimate partner violence when we deny them the same divorce process choices available to families who have not experienced intimate partner violence?
Imagine wanting a divorce because your spouse abuses you, but your spouse is a prominent member of your community, active in town politics and a little league coach for your son’s team. Due to the public nature of the proceedings, you are afraid to file divorce papers and request an order that your spouse move out of the house because you don’t want to disclose the abuse, particularly when it is sexual in nature. You also suffer from depression and will not be able to handle the stress of litigating the case in court. Thus, you want to mediate the case to avoid the embarrassment a public divorce would cause your family in the community and the emotional toll it would take on your ability to function and care for your children. You would feel safe in a mediation setting as long as you had a lawyer, but you heard that mediators will not take cases with allegations of abuse. So, you decide not to disclose the abuse to avoid rejection of your case.
What if you are a stay-at-home Mother, who recently got a restraining order against your spouse. Your estranged spouse is paying child support but refuses to pay the mortgage. In addition, opposing counsel is pressuring you to sell the house, which has no equity. Your children are home due to the pandemic, and you haven’t worked in ten years. You would like to stay in the house until you devise a housing plan. You are willing to negotiate the terms with your spouse to minimize the financial burden. Meanwhile, your children are expressing distress over the hectic parenting time schedule. You want to make some adjustments to the schedule that you think will help both your spouse & the kids. You think your spouse will be receptive, if you talk directly to each other about these specific issues in a safe manner or setting. Your spouse, pursuant to his attorneys’ instructions, is refusing to engage with you on these issues. Your attorney proposes a mediator to opposing counsel, who responds that it’s not an option because there is a restraining order. Despite your attorney’s encouragement that mediators can be used safely when a restraining order is in place, opposing counsel still refuses unless you vacate the restraining order. You feel helpless because you anticipate that the Court will not adequately address your concerns, and you need the restraining order to feel safe.
When lawyers and/or mediators decline clients the opportunity to engage in mediation when there are allegations of physical abuse and/or a restraining order, aren’t we oppressing their right to self-determination, a cornerstone of the mediation process? Aren’t we blocking one’s opportunity to find some empowerment in a disempowering system, leaving those who seek help vulnerable to the on-going cycle of power and control whether exerted by their partner and/or the court system? If mediators are trained to address power imbalances by using their unique communication skills, why not offer that specialty service to those who may feel the least empowered in their relationships, the victim of the abuse? Indeed, perhaps the abuser feels disempowered due to their own trauma histories or perceptions and needs space to feel heard. Is it fair for lawyers and mediators to assume these potential clients are not capable of participating in mediation for their individual and mutual benefit?
While there are potential risks and legitimate concerns for all, who make an informed choice to participate in mediation services when there is IPV, do those risks and concerns justify mediators and lawyers taking the choice to mediate away? While all cases with IPV will not be suitable for mediation, that does not mean we must reject all cases with IPV. If lawyers and mediators always reject mediation for IPV cases because they are scared for themselves, for the clients, or for both, we are missing an opportunity to address those fears and make mediation a viable option for families who experience IPV. I can imagine a world where mediation is perceived as another helpful tool to address the harm of IPV in the same way the court system is perceived to be responsible for addressing the harms of IPV today. I can imagine a world where mediation helps to break old abusive communication patterns and contributes to stopping the cycle of abuse. I can imagine a world where mediation empowers families where there is IPV to self-determinate and achieve a safer, more secure and peaceful future their children. I believe that we, as mediators and advocates, have a responsibility to make that world a reality