Mediation and Domestic Violence
Since researchers estimate that 34-60% of American women will be abused in their lifetime, the extraordinary prevalence of domestic violence must be taken into account in all policy-making with regard to family law, and especially when mandatory mediation or mediation orientation is being considered.
If mediation were mandated in all family law cases, in a significant portion of cases - as many as 50% according to one Vermont judge - abuse victims will be forced into mediation with their abusers.
Both national and Vermont groups which have studied mediation, including the National Council of Juvenile and Family Court Judges, the Conference of Concerned Mediators and Concerned Advocates on Mediation of Family Law Issues, the Vermont Task Force on Gender Bias in the Legal System, and the Vermont Mediation Advisory Panel, as well as individual mediators, have concluded that mediation should not take place in cases involving domestic violence:
"Judges should not mandate mediation in cases where family violence has occurred."
"[M]ediation is inappropriate in cases involving domestic abuse ... there is no mechanism in mediation to hold the abuser accountable for his actions; this sends out a message to the participants and to society that violent behavior is condoned and that the victim may be partially responsible for its occurrence ... the mediation process is not designed to deter violent behavior or to protect victims .... (N.Y. Times) Protection of one's safety should be considered too important to entrust to any other but the legal system which has the power to remove the batterer from the home, to arrest when necessary, and to enforce the terms of a decree if a new assault occurs. (Woods)"
The Vermont Gender Bias Task Force found "consensus on some important issues, such as the impropriety of the use of mediation in disputes that involve abuse.... (1) Certain conduct, including abuse of a spouse, children or others should not be mediated. (2) Mediation should not be used to resolve other family matters where claims or acts of abuse, violence, or criminal conduct exist."
The Vermont Mediation Advisory Panel "recommended that participation in a divorce mediation orientation or divorce mediation not take place where either of the parties is or has been involved in domestic violence...."
"[I]t is clear that the only tenable position is to avoid mediation involving battered women."
The Research Findings
"When mandatory mediation is part of the court system, the notion that parties are actually making their own decisions is purely illusory. First, the parties have not chosen or timed the process according to their ability to handle it. Second, they are not allowed to decide themselves how much their lawyers should participate, but instead are deprived of whatever protection their lawyers have to offer. Finally, ... they often cannot leave without endangering their legal position even if they believe the mediator is biased against them."
"It is presumptuous to assume that the state has a better idea than the parties themselves about whether mediation will work in their particular case. A party may know something the mediator does not: that her spouse is a pathological, but convincing, liar; that years of living with a man have resulted in a pattern in which the woman consistently accommodates him, even when she does not want to; that the woman will lose sight of her own needs in the attempt to appear a cooperative female; or that the woman will sacrifice many of her interests in order to end what may be a psychologically painful process."
"Victims may be too intimidated to give an informed voluntary consent to mediation. ... Even when the victim has `consented to' mediation, she may only seek it and seem more than willing to go through it due to her belief that she really has no other viable option. ... Neither victim participation in the mediation process, nor any agreements achieved through such an unbalanced `mediation' is truly voluntary. ... There should be an assumption that a battered woman cannot voluntarily consent to participate in mediation or to the terms of a final agreement."
When "[n]egotiations [are conducted] between attorneys on behalf of their clients, ... [t]he settlements are designed to pass judicial review. The process offers subpoena, investigation, injunction, contempt and incarceration powers. The legal process seeks to ensure a just and equitable result that is enforceable based on law. ... In mediation, the parties are not informed of their legal rights and have no rules or precedents to guide them as to what is equitable or reasonable under the circumstances. ... Thus, the parties are susceptible to forfeiting rights out of guilt, domination, intimidation, lack of resources or coercion. Settlements may be agreed upon, but they may not be equitable or enforceable."
"Women have fewer bargaining chips than men. There are fewer issues about which women can compromise. Men hold most of the economic chips. Men have a monopoly on the violence/control chips. Women have little to offer in exchange with men to gain safety, economic survival and continued primary caretaker status/sole custody - the three most critical outcomes for battered women in any divorce or protection order proceedings. Therefore, to make sure that she is free from future violence and can raise her children, [in mediation] battered women are forced to bargain away those items which are seemingly more expendable to her - economic security and equitable distribution of marital property."
"Mediation trivializes family law issues by relegating them to a lesser forum. It diminishes the public perception of the relative importance of laws addressing women's and children's rights in the family by placing these rights outside society's key institutional system of dispute resolution - the legal system - while continuing to allow corporate and other `important' matters to have unfettered access to that system. Loss of one's children and protection of one's physical safety should be considered too important to entrust to any other but the legal system."
"The goal of fairness is central to the mediation philosophy, but this goal does not focus on past conduct that was disruptive or endangering to family members. Mediation is future oriented, and historical discord is not considered either appropriate or helpful in the parents' strategic planning for interactive responsibilities in raising the children." Susan Rogers and Claire Francy "argue that communication in mediation should be circumscribed: `A complainant who dwells on negative feelings caused by past events may find it hard to look toward a constructive relationship with the respondent in the future.'" Imagine, for example, ignoring a criminal defendant's past record in fashioning an appropriate sentence. Imagine ignoring a presidential candidate's record in determining fitness for future responsibilities.
"A substantial number of divorcing women report that they are fearful of their spouses and forfeit legal rights because of their fear of property destruction, psychological abuse, or violence (Kurz & Coughey). These fears reduce a woman's ability to advocate for herself in the mediation process (Ellis, Woods)."
"A study that compared people who chose to mediate with those who rejected the opportunity found that 44% of the reasons given by women who rejected mediation services offered to them centered around their mistrust of, fear of, or desire to avoid their ex-spouse. In contrast, those men who rejected mediation appeared to do so because they were skeptical of the mediation process or convinced they could win in court."
"Mediators are not immune to the sexism, racism, and homophobia that pervades [sic] our entire society. And the public forum that exposes the corruption and biases of our courtrooms does not exist in a mediation situation. The people involved talk privately. An agreement is reached that is never subjected to review by anyone outside the mediation process. There is no appeal from an unfair mediation agreement...."
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