Practitioners and scholars have long engaged in vigorous debate about whether, when, and how cases involving intimate partner violence (IPV) should be mediated. In practice, courts and mediators have attempted to resolve these questions by adopting formal and informal IPV screening protocols, most of which seek to discern from the parties whether IPV is an issue in their relationship. If IPV is identified, the screener typically decides whether mediation should occur and if it should, how it should be conducted.
We see two limitations to this standard approach. First, we believe that the presence of IPV does not determine whether, when, and how a case should be mediated. In reality, there is great variation in the way IPV affects interpersonal and parent-child relationships, so simply knowing that IPV has occurred is not enough to assess the appropriateness of mediation – or any other dispute resolution process. The pros and cons of using mediation are different for every family, and the decision to participate is a strategic one that should depend in large part on what each party has experienced and hopes to achieve and what process is most likely to result in a safe outcome. In our view, screening is less about sorting people into specific processes based on the presence or absence of IPV than it is about allowing parties to make their own informed, deliberate choices about participation, with support from the mediator and, under ideal circumstances, guidance from an attorney or IPV advocate.
We also believe that standard IPV screening protocols, which depend on professionals to detect IPV and decide whether, when, and how a case should be mediated, are often too narrowly focused on having the parties disclose information about IPV. By that we mean that while courts and mediators understand best what mediation is, how it works, and what sorts of safety accommodations are available if parties need them, the parties understand best the complexities of their own experiences. As seasoned family law attorneys, mediators, and advocates for abused parents, we know that it is much easier for a mediator to explain the mediation process to an IPV survivor than it is for an IPV survivor to explain a history of abuse to a mediator. Our approach focuses more on the information that flows from the mediator to the IPV survivor about the mediation process than it does on the information that flows from the survivor to the mediator about the abuse itself.
We developed the SAFeR Mediation Discussionto help practitioners structure a dialogue that helps parties assess whether participation in mediation is right for them in view of their own circumstances and in consideration of the short- and long-term safety and well-being of family members.
The Mediation Discussion Guide
The SAFeR Mediation Discussion Guide, whose title stands for Screen, Assess, Focus on effects, and Respond, systematically explores how IPV might affect the ability and willingness of parties to participate in mediation, the extent to which process modifications and interventions could address their concerns, and whether a court process or dispute resolution process other than mediation should be considered.
As its title indicates, the Mediation Discussion Guide promotes conversation about participation in mediation. It encourages parties and practitioners to think beyond one-size-fits-all solutions. It does not dictate whether mediation should occur, and it does not suggest a formula for structuring mediation. Instead it helps each party make a knowing and voluntary decision about participation in light of his, her, or their circumstances and the availability of other realistic options. It also fosters dialogue between the mediator and each of the parties individually about what process modifications, if any, might be appropriate to ensure that mediation is safe, fair, and conducive to a workable outcome.
Mediators and case management personnel can use the Mediation Discussion Guide to structure private conversations with each party before entering mediation. The conversations are focused around five main areas of inquiry: (1) autonomy; (2) good faith and fair dealing; (3) parenting judgment; (4) access to good information; and (5) safety. To ensure safe and informed dialogue about these issues, mediators must conduct these conversations with each party, individually and in private.
Before undertaking these discussions, practitioners should explain their role and function in the case, why they are asking about IPV, how they will use the information, whether and how information will be shared, whether disclosures of IPV will be part of the record, the scope and/or limits of confidentiality, and the practitioners’ duty to report. Adhering to these practices allows parties to make informed choices about the relative risks and benefits of talking about IPV.
Areas of inquiry
The five areas of inquiry contained in the Mediation Discussion Guide reflect and support the traditional hallmarks of mediation: voluntary participation, self-determination, full disclosure, and informed decision-making. They explore whether, how, and to what extent the parties’ experience of IPV, if any, compromises these basic foundations.
Autonomous decision-making. The decisions of the parties should be the product of their own separate deliberation and judgment. When IPV is an issue, one or both parties might be subject to undue pressure, duress, threats, manipulation, or intimidation. A professional might start this inquiry by asking: “How comfortable are you saying what you think, raising difficult topics, disagreeing with the other person, and standing up for what matters to you?” In response, a party may indicate readiness or express some hesitancy that requires further exploration.
Good faith/fair dealing. When IPV has occurred, a party might be unable or unwilling to adhere to ground rules, respect the needs and interests of the other party, fully disclose relevant information, explore options, share decision-making, and commit to honoring agreements. A professional could initiate this conversation by asking: “How confident are you that both of you will: (a) follow the rules; (b) share important information; (c) hear each other out; (d) cooperate; and (e) stand by promises and agreements?” A party may express confidence that both parties will deal fairly, or a party might disclose concerns that require additional conversation.
Parenting judgment. When parties plan to mediate parenting arrangements, IPV can indicate problems with parenting capacity and judgment, commitment to shared decision-making, and/or willingness and ability to attend to the needs of children. A professional might broach this topic by asking: “How well can you rely on the other person to make good decisions when it comes to the children, prioritize the children’s needs, and share parental responsibility?” A party may indicate that both parents are trustworthy in this regard or that one or both will have difficulty elevating the needs of children and sharing parental responsibility. Any concerns about good parental judgment should be discussed in more detail because, at its core, mediation expects the parties to exercise it.
Safety. When IPV is an issue, parties may not be safe during mediation sessions, between mediation sessions, and going forward after mediation has concluded. Whether or not specific risk factors are present, a professional should ask: “Is there anything about this process that makes you concerned for your own safety or for the safety of your children? If so, please say more.” As a part of this inquiry, professionals should ask about risk factors such as stalking, sexual assault, abuse during pregnancy, threats to kill, strangulation, controlling behaviors, access to weapons, increases in the frequency and severity of IPV, child abuse, animal abuse, excessive jealousy or obsession, mental status of an abusive party, and attempts to avoid responsibility for IPV. If one or more of these has occurred, the professional should explore the level of risk and engage in safety planning and/or make appropriate referrals.
Access to good information. Parties require access to relevant information so they can understand their rights and options and assess the resources available to them. To give informed consent, they should understand: (a) the features of the mediation process available to them, including the mediator’s style and approach; (b) the nature and consequences of the issues to be decided; (c) the rights they relinquish by not going to court (such as a more formal process; the ability to make a record, correct misinformation, and cross-examine witnesses; a decision on the merits; and the right to appeal); and (d) the nature of other decision-making processes available to them. As a part of this discussion, the professional should ask: “How well do you understand this process, your legal rights and options, and the things you need to know to fully and effectively participate?” A party may feel fully informed or express a need for further clarification about some topics.
Possible procedural responses
If these private conversations reveal that IPV compromises the mediation process in any way, the Mediation Discussion Guide can help parties and professionals discuss and evaluate whether possible procedural safeguards, modifications, or interventions could be put in place to effectively address those specific concerns. Depending on the challenges posed, the professional should explore with each party possible protective measures, including involving an expert co-mediator, advocate support, and/or a “best interests” monitor as well as restricting mediation to clearly defined issues, implementing enforceable rules and expectations, and/or defining a protocol for safe termination.
This discussion will help each party assess the desirability of participating in mediation based on his or her actual experience of IPV. In what ways and how significantly have IPV-associated problems affected the capacity of each party to mediate? Can the foundational conditions for mediation be restored through targeted safeguards and interventions tailored to address specific problems? Is use of a different dispute resolution or court process more likely to enhance the short- and long-term safety and well-being of family members?
Consistent with its individualized no-assumptions approach, the analysis suggested here results in different conclusions by different parties and families. Some parties may choose not to participate in mediation. Others may choose to participate in a mediation process specially structured to meet their needs. Some illustrations might be helpful:
- A victim of coercive controlling abuse might explain that the perpetrator doesn’t follow parenting-time agreements, doesn’t pay child support, and is hiding financial assets. This raises questions about the perpetrator’s willingness to participate in good faith and deal fairly in mediation as well as whether the perpetrator has the parenting judgment to recognize and prioritize the children’s needs in negotiation. After conferring with the mediator, the victim might conclude that the perpetrator lacks key capacities for mediation, that the problems won’t be remedied by available process modifications and interventions, and that proceeding to court will lead to a safer outcome.
- A party might anticipate difficulty expressing needs and disagreeing with the other party in a face-to-face situation. This raises questions about the party’s ability to negotiate and make autonomous decisions. Depending on the context of the IPV and the level of intimidation, a professional might explore the extent to which having an attorney present or caucusing separately would be an effective remedy. The party might conclude that these modifications would be sufficiently empowering – or the party could decide that a different process would provide more appropriate support.
- A victim of coercive/controlling abuse might explain that the perpetrator will act appropriately during mediation but has threatened to retaliate over the weekend if the victim doesn’t go along with the parenting arrangement the perpetrator proposes. This raises questions about safety, good faith and fair dealing, parenting judgment, and autonomous decision-making. The victim might conclude that existing process modifications and interventions will not protect the victim and children outside of mediation sessions.
- A party could be overwhelmed by the process of separation and divorce and unable to decide how to proceed. This indicates the potential need for more information and counseling. The professional might be able to provide this or suggest delaying deciding about mediation until the party consults with an attorney.
- Neither party reports any concerns about autonomous decision-making, good faith and fair dealing, judgment, or safety and risk. Both understand the process, their legal rights and options, and believe they will be able to fully and effectively participate in mediation. Although the mediator should remain alert for any indications of IPV, the mediation could go forward without the need for special modifications.
The SAFeR Mediation Discussion Guide promotes self-determination by helping parties who have experienced IPV make informed choices about participation in mediation. Consistent with the basic tenets of mediation, it makes the most of the best information by drawing on the professional expertise of the mediator and the personal expertise of the parties. Mediators and other family law professionals can use the Mediation Discussion Guide to facilitate deliberative conversations about which dispute resolution or court process is most likely to result in safe and workable arrangements for the family.