Mediation & Domestic Violence

[Grace]

I am a true believer in mediate instead of litigate but I'm not if this is the route to go in domestic violence cases. And I'm talking proven violence not false allegations. I believe it can have a particularly negative impact on women with abusive partners. For these women, disagreeing with the wishes of their partner is not an option -- it is too dangerous and the ability to disagree has been trained out of them. This is well documented with respect to mediation. There have been too many stories about women who signed "agreements" through mediation because they were afraid not to, about women whose abusive partners appeared cooperative and reasonable during the mediation session but who, outside mediation, threatened the women with dire consequences if they did not agree to what they wanted, about women who "traded off" child support or a fair division of property in exchange for a promise from their ex that he would not pursue custody of the children and so on and so on.

I'm looking forward to Sean views on this, as well as anybody that wants to add a comment.

[logicalvelocity]

I'm all for mediation,

Even in domestic violence situations the person's lawyer can sit in on the mediation process to protect the individual's rights and to advise when necessary.

[Divorcemanagement]

As a family mediator, I see a wide variety of men and women with different backgrounds and different circumstances surrounding the end of the marriage come to the table and attempt to work out their differences. Mediators are trained to attend to each mediation session by asking questions of both parties and the responses of each party help the mediator create a hypothesis of what the dynamics in the dispute might be as well as clarifying the prospect that any power imbalance exists.

So, we don't know if family violence is an issue unless there are cues from either of the parties which give us reason to believe that it is having an impact on the mediation process.

That being said, do I think that criminal code family violence cases can be mediated? Yes - but it takes shuttle mediation or caucusing - where neither party is in the same room and the mediator undertakes the very difficult task of shuttling from room to room, presenting ideas, reframing responses and helping both parties come to a resolution. I have never done shuttle mediation but I know some mediators who have and some who won't do it as a matter of principle.

One form of mediation that I could see being quite effective in family violence cases is that of Mediation/Arbitration - both parties enter into an agreement with the mediator (usually a mediator with a judicial background) which states that the mediation will proceed using normal means but if an impasse occurs, both parties would be compelled to use that same mediator as an arbitrator in their dispute. The prospect of the mediator possibly making a binding decision on the parties can act as an incentive to "good behavior" on the part of both sides in the dispute. The arbitration is semi-judicial and is run kind of like a "mini-trial" - it's lawyer assisted however, the mediator can use his/her notes and observations of the parties during the mediation to assist in making a binding decision and that is certainly one way to correct a power imbalance that might occur.

There have been too many stories about women who signed "agreements" through mediation because they were afraid not to, about women whose abusive partners appeared cooperative and reasonable during the mediation session but who, outside mediation, threatened the women with dire consequences if they did not agree to what they wanted, about women who "traded off" child support or a fair division of property in exchange for a promise from their ex that he would not pursue custody of the children and so on and so on.

To clarify the issue of signing anything - mediation is a "without prejudice" process and the only thing that either party signs is an agreement to mediate at the start of the mediation process. The agreement is a contract between the mediator and the parties which explains how the mediation process will work, clarifies who is paying the fee and how it will be paid, and mostly to protect the mediator from being compelled to testify in a court proceeding as to what occurred during the mediation process. When the mediation is complete, the mediator drafts a "Mediation Report" which is his/her understanding of agreements that were reached. Both parties take the mediation report to their lawyers and legal counsel drafts, for example, a separation agreement based on the mediation report. It should also be noted that when either party is signing a legal document that is the result of the mediation process - they are doing this under the auspices of their lawyer and that the lawyer is obliged to advice their client whether it would be wise or unwise to sign the agreement.

Mediation in itself is simply one dispute resolution method and people often bring their own agendas to the table. There are a wide variety of power imbalances - from a controlling personality to a man or woman who is only participating in mediation "to say that they went" - in other words, they are participating, knowing full well that the mediation will be unsuccessful because they know they will eventually litigate and is concerned that a refusal to mediate would impact their credibility in the eyes of a judge.

[2hopefull]

the problem with proving abuse is one needs to have witnesses - guess what - it usually happens in private and after a few years there are no witnesses to be found. To expect someone to be in the same room as the abuser is so wrong on many levels and one of the reasons that most don't leave the marriage until there is no choice - trust me on this one

[Jenny]

I think that the issue with mediation and when there is violence in the home is that the abused partner is usually in a weaker position. They are bargaining from a totally unbalanced situation. The inequality and risk of coercion is a real impediment to reaching a fair solution for both parties.

[Denisem]

This thread is interesting to me....my ex has been found guilty and is on probation for break and enter with intent and assault on me....my lawyer told me it doesn't really matter what the reason for the separation when it comes to support for myself or the children. So when I received my divorce papers from him their was know mention of abuse. I am contesting on the grounds of child support and support for myself...should I bring up the abuse?

He broke down the door to my home and dragged me out of bed into his car and the kids called 911.
Many years of abuse...but this was the only time police where called.
The police had to shoot out his tires to make him stop.

[workingthruit]

Originally Posted by 2hopefull

the problem with proving abuse is one needs to have witnesses - guess what - it usually happens in private and after a few years there are no witnesses to be found. To expect someone to be in the same room as the abuser is so wrong on many levels and one of the reasons that most don't leave the marriage until there is no choice - trust me on this one

I have witnessed 'shuttle mediation' take place ... and be successful.

The mediator was sympathetic to the alleged victim, but her role was to ensure there was a fair agreement at the end. She didn't take sides, nor was the accusor ever expected to communicate with, or be in the same room with her ex-partner.

I have no doubt it is a difficult process for the mediator, but in this situation it was handled very well, and there was no reason for the 'victim' to frightened or feel intimidated.

In situations of true violence, it would certainly be unfair to the abused to have to be in the same room as their attacker - but shuttle mediation, particularly combined with arbitration is a terrifc alternative.



**Please note, I am not implying that domestic violence should not be taken serioulsy, but in this case, there was no abuse, only false allegations , hence my wording above.

[2hopefull]

I'm a bit confused at the last post saying it was not abused. To prove abuse is not that easy, especially mental - as Grace mentioned one is trained not to stand up for themselves. Getting self-respect, self-worth, courage to leave - then the whole divorce process while trying to protect one's child is an uphill battle - one doesn't need to face that person and revisit the abuse and abuser again and again. It took months to stop apologizing for every little thing to everyone - I even would apologize if someone else would do something.

[Grace]

Originally Posted by Denisem

This thread is interesting to me....my ex has been found guilty and is on probation for break and enter with intent and assault on me....my lawyer told me it doesn't really matter what the reason for the separation when it comes to support for myself or the children. So when I received my divorce papers from him their was know mention of abuse. I am contesting on the grounds of child support and support for myself...should I bring up the abuse?

He broke down the door to my home and dragged me out of bed into his car and the kids called 911.
Many years of abuse...but this was the only time police where called.
The police had to shoot out his tires to make him stop.

OMG, are you OK. I hope charges were laid. How not only horrible for you, but for the children to witness this.

In Ontario divorce is "no fault" so his abuse would only come into play when it comes to custody & access. I don't think it makes a difference in support payments.

Men who abuse are usually very controlling, so brace yourself for a legal battle. They normally don't like to "give in" on anything.

I will say a prayer for you and your family tonight.
God bless you.

[Jeff]

Denisem I'm so very sorry to hear what you had to go through, and in front of your children, no less.

Despite that, for the divorce itself, I'd still recommend going on the ground of one year of separation, just because it's cheaper and simpler. I think that the domestic violence is very relevant for the other legal issues.

If there's been a criminal conviction, it should be possible to make a successful claim in tort law for damages for the assault.

I think it's possible although not really recommended to use counsel-assisted mediation in cases where there has been domestic violence. Between the mediator and your lawyer, that should balance out things and protect you.

The real question is whether mediation is worthwhile in such situations. Mediation anticipates two people trying to work together. As Grace says, that's not really part of the personality of most people who abuse. So, even though an abused person would be protected by having a lawyer around, it may well just be a waste of time if there's no genuine intent on the part of the other side to mediate in good faith.