Divorce Mediation | Divorce Mediator

Mediating Divorces Involving Domestic Violence

Divorce mediation requires a safe, fair and non-coercive process. In order for a mediation to be successful, there needs to be a balance of power among the parties. Both parties need to feel free to discuss feelings and concerns without the possibility of retaliation so that they can negotiate effectively. Without a balance of power, any agreement reached by the parties may be unfair. For these reasons, mediating cases involving domestic violence can present special concerns and certain safety measures should be taken.


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    Both Parties Must Be Ready To Mediate

    First, it is essential that both parties possess the requisite skills and capacity to mediate. A party must be able to speak up and negotiate, reach and carry out a voluntary agreement, and feel safe and comfortable during and after mediation. If any of these things are not possible, the mediation process must be modified or avoided altogether.

    Things Each Party Should Know Before The Mediation Process Begins

    Second, there are certain things each party should know before mediating.

    • Parties have a right to choose their own mediator. Many people have the misconception that if the court orders them to mediation, they are required to use the mediator referred by the court. This is not true. The court will provide the parties with a list of court-approved, certified mediators or the parties may research and find a mediator on their own. A mediator trained in domestic violence screening should mediate cases involving domestic violence.
    • Mediation is a voluntary process and either party may withdraw from mediation for any reason. The parties are not required to reach an agreement just because the court ordered them to mediation. If the court orders the parties to mediation and the parties attend mediation and participate and negotiate in good faith, yet do not reach an agreement, they are not in violation of the court order to mediate.
    • Mediations do not have to be conducted face-to-face. In order to establish an equal balance of power among the parties, sometimes it is necessary to separate the parties from the beginning of the process and assure that the parties have no contact with one another. A mediator is still able to facilitate productive discussion and aid the parties in generating options and coming up with an agreement while they are in separate rooms.
    • All cases should be screened for domestic violence by the court and a mediator before beginning the mediation process. Parties who are subject to a personal protection order or who are involved in child neglect or abuse proceeding may not be referred to mediation without a hearing to determine whether mediation is appropriate. A mediator should conduct interviews with each party in person or by phone to screen for domestic violence. If at any time during mediation a mediator concludes that a party cannot safely stand up for what he or she believes is good for him/herself, and the case is better resolved by other means, the mediation should be stopped. A mediator should never be neutral about safety.

    Special Considerations If Domestic Violence Is Involved

    Third, if there is a history or even an allegation of domestic violence, the mediation process should be changed and certain measures should be taken to address safety and concern for the victim’s ability to make decisions without coercion or fear. A skilled mediator knowledgeable about domestic violence should conduct the mediation. The victim should be allowed to arrive after the abuser and leave earlier than the abuser to avoid contact or stalking. The victim and the abuser should not be allowed to sit in the waiting room together. An advocate for the victim (attorney, friend, family member, or advocate from the local domestic violence program) should be allowed to be present during the mediation or to wait for the victim in the waiting room. If the victim is comfortable participating in mediation face-to-face with the abuser, the victim should be allowed to sit closest to the door. The mediator should set ground rules for the mediation, emphasizing the importance of no violence, in order to reduce any fear or intimidation felt by the victim. A mediator should consider co-mediating with a male-female team. A mediator should use a caucus with each party as a safety precaution to check on the process of the mediation and assure the victim feels safe. A mediator should always talk to the victim between mediation sessions to assess the lever of fear and to check on retaliation. The mediator may also insist that attorneys represent the parties during mediation if he/she feels it is necessary.

    The Role Of The Divorce Mediator When Domestic Violence Is Involved

    Finally, a mediator must be particularly cognizant of certain behaviors of the parties during mediation especially if the victim chooses to participate in a face-to-face mediation with the abuser. These behaviors include, threatening looks or actions by the abuser, one party speaking for the other or attempting to do so, one party dominating the session, one party giving in excessively, one party suddenly becoming quiet, one person objecting to separate screening interviews, one person appearing in control while the other appears not in control, permissive words or gestures by the victim, secret signals or code words or phrases on the part of abuser, threats by innuendo, referring to a past incident of power and control, stating an “expected” outcome, intimidation, retaliation for stating one’s own point of view, and threats invoking domination, power or control sanctioned by tradition, culture or religions. Mediators should also be concerned with negotiations and agreements conducted outside of the mediation that seem one-sided or a change in a person’s demeanor from one mediation session to the next. The parties must remember that it is not the role of the mediator to establish the truth of the allegation of domestic violence, but to screen and be aware of it to ensure a balance of power and negotiation ability.

    If you or anyone you know is participating in a mediation involving domestic violence, be certain your mediator is knowledgeable about domestic violence and has participated in domestic violence screening training for mediators.