Judge Susan P. Finlay (ret.) guest authors this post on domestic violence and family law mediation
One of the most important responsibilities of a mediator is to provide a safe environment in which the parties work to resolve their conflicts. Without this safe environment, no mediation can be successful. This responsibility coupled with the threat of domestic violence has resulted in mediators feeling an aversion to working with parties whose relationship history includes domestic violence.
Another responsibility of the mediator is to make sure that any agreements between the parties are the result of free will and are voluntary, not the result of duress and/or coercion. This responsibility increases the reluctance of mediators to get involved in cases where domestic violence is present since many domestic violence cases involve power imbalance as well as threats and coercion.
Mediators are well aware that family court cases are the most dangerous. Some reports indicate that 1 out of 3 couples has experienced domestic violence and that domestic violence is a leading cause of death for women in this country. We have all read news stories of the rejected spouse who, sometimes years later, guns down his ex, sometimes her co- workers, and sometimes his children as well. Most experts believe, with justification, that domestic violence cases belong in a criminal court. There is no question that the criminal courtroom has a different dynamic than a mediator’s office. Nevertheless, couples who have experienced domestic violence still get divorced and some can benefit from the services of a mediator.
There is a legitimate fear among victim advocates that the mediation process will somehow act to infer or imply that domestic violence is just another problem to be solved as opposed to the crime it is. Advocates fear that mediation will minimize the devastating effects of domestic violence upon victims including the children.
All of the above concerns, which are legitimate, have combined to create a blanket prohibition for some mediators against mediating DV cases which in some cases have resulted in heightened danger for the victims. The court process is very scary and stress inducing. When one or both of the parties to the divorce action have personality disorders such as borderline, antisocial, histrionic, narcissistic or paranoid personality disorder, the tense and adversarial posture of the litigated divorce case can be enough to send some parties over the edge and into violence. Mediation can help calm these parties in many instances.
So what can mediators do to achieve the goal of helping clients and at the same time reduce the likelihood of harm to the victims, their children, their co-workers and/or to the perpetrators themselves?
Let’s go back to the concept of creating a safe environment.
Mediator Steps for Reducing the Likelihood of Danger
In a known domestic violence case, the mediator must research the case history and make an assessment regarding the level of danger. There are written instruments the mediator can use to assess lethality or a verbal interview based on questions the mediator has in mind (so that the other party doesn’t know what has been asked). For example, high risk factors include prior use of weapons, strangulation, sexual violence and serious injuries among other relevant factors.
It is recommended that the mediator assess and weed out the high risk cases. To do so, the mediator should use a screening process which not only includes the risk assessment, but also includes a detailed case history. The more the mediator knows, the better decision he or she can make regarding the suitability of the case for mediation. An example of the assessment/screening process could be set up as follows:
- DV Screening Process: The Parties are advised that the mediator will screen them to see if the case is suitable for mediation. The parties are directed to arrive and leave separately on different days, or with the victim arriving last and leaving first if it’s the same day. Either is welcome to bring support persons who can wait in the waiting room or accompany them in the interview. The mediator meets with the couple, separately – to ascertain suitability using a screening process which includes a risk assessment and detailed case and relationship history.
- There are different kinds of domestic violence as well as different types of abusers. Some cases are situational, brought on by stress, with no history of domestic violence. This type of case can involve damage to community property, such as destroying clothing or cars. If the damage is inflicted on a human or a pet, however, this should be a red flag. People can get angry under stress and break inanimate objects but normally don’t injure other humans or animals. If one or both of the parties are mentally ill or alcoholics or drug addicts, these are also red flags indicating that the case is unsuitable for mediation. Any case involving a weapon should be sent back to court, where there are armed bailiffs. These cases are just too dangerous and need a safer environment. The mediator needs to remember that victims may minimize their circumstances because they don’t want to believe it or are ashamed, and abusers can be charming and in denial.
- If the clients are amenable to mediation and the mediator finds that the case is a suitable one, then the mediator needs to take time to coach the parties regarding skills they can use for a successful mediation. The mediator needs to focus on what they, as a team, can do to achieve their goals and move forward.
- There are some cases where the parties cannot be in the same room; there are some where the parties are comfortable in the same room. The parties will let you know and if they don’t, their body language is often a giveaway.
- If there is a restraining order, it must be amended by the protected party prior to any mediation taking place to allow for mediation with a specific mediator, at a specific location and time. Remember these protective orders must be clear so that law enforcement can enforce them if need be. Some offenders know no boundaries and could call their spouse at 2 a.m. to “mediate”. The order must be specific regarding with whom, where and when.
- If there is a tremendous power imbalance, the mediator needs to consider whether or not to continue if the “powerless” is not represented by counsel. A mediator can make it a prerequisite that the party with little or no power be represented by counsel and that the attorney be present at the mediation sessions, or that both parties must have counsel present, which may help in managing the abusive party.
There are many restorative justice programs where the victim confronts the offender and is empowered by the experience. This approach can restore power to the powerless. Divorce mediation, however, is not a traditional restorative justice process. It can be another way for an abuser to inflict emotional damage on the victim or re-victimize the victim. For this reason, many organizations are opposed to mediation in domestic violence cases. It is obvious that training and experience are needed to avoid re-victimization. If successful, mediation can be empowering for both parties.
In a domestic violence case, the mediator’s ethical responsibility to remain neutral is crucial. The mediator must be vigilant about NOT being used as another weapon against a vulnerable victim. Both parties affected have needs which the mediator can address. For example, referrals can be made to therapy, to Batterers’ Programs, to a shelter, to a DV Hotline, to mental health services. These referrals are particularly important when dealing with custody issues since under Family Code 3044, a domestic violence offender is presumed to be an unfit parent. If the mediator has screened out the habitual offenders and is dealing with a situational offender, then the children may not be in danger. The situation of the children must be addressed by the parties and the mediator. If Child Protective Services (CPS) is involved then any parenting plan must be approved by CPS.
If a mediator is going to work with victims and abusers then the mediator needs to be very clear regarding his/her purpose. It is not to solve the “problem” of abuse. Other than making referrals to appropriate treatment provider(s), the issue of abuse is an issue that the parties will have to deal with themselves. What the mediator can do is help them solve their non-domestic violence issues which are common to every divorcing couple. The DV is present, like an elephant in the room, and can’t be ignored but it can be recognized and placed in the background so that the other issues can be resolved which will help the couple reduce stress and part ways in a more constructive manner.
If the mediator acknowledges and places the domestic violence issue in the background, as suggested in the preceding paragraph, then the restraining order should not be on the table for negotiation. This is a court order. The protected party can request a modification and/or dismissal on his/her own, but it shouldn’t be part of the resolution of the other issues.
In summary, this mediator will mediate cases involving domestic violence in certain cases. Some people are in need of this assistance and can benefit greatly from an alternative dispute resolution process. Mediation for them can begin the healing process as they move on to new and hopefully better lives. The need is there. As a member of the State Domestic Violence Task Force for 7 years, and as the supervising Judge of the Domestic Violence Court in San Diego for 4 years, I have received hundreds of hours of training from experts on this issue. Every day, on the bail review calendar, I had to determine whether or not it was safe to release accused abusers on their own recognizance and whether or not the accused abuser presented a danger to the spouse and children. I have issued thousands of protective orders in criminal court and in family law court and taught Domestic Violence for the National Judicial College as well as for CJER’s new judge college in California. Even with this experience, I proceed with great caution. These can be volatile situations and I have learned to my deep sorrow that a misjudgment carries heavy consequences.
If it is true that 1 out of every 3 couples has experienced domestic violence, then we have all already handled many of these cases but were unaware that domestic violence was part of the equation. While the known domestic violence case presents certain concerns which I have addressed above, the case with hidden domestic violence issues may be even more dangerous. This is why I believe it is crucial to take a detailed case history before beginning the actual mediation in all cases. It is imperative that the mediator do an assessment, not only of the risk and lethality factors, but a general assessment to determine the appropriateness of mediation in each case. If you don’t know the rocks are there, you are more likely to run into them. If you know where they are, it may be possible to avoid them.
Hon. Susan P. Finlay, (Ret.)
Mediator, West Coast Resolution Group
Hon. Susan P. Finlay has been a part of the legal community for over 30 years and retired from the Superior Court in March of 2000. She sat on Assignment in Domestic Violence and Family Law Courts as member of the Assigned Judges Program, appointed by the Chief Justice of the California Supreme Court until December 2011. She also served on the Advisory Committee to the Chief Justice for the Assigned Judges Program until December 2011 and was the former Director of Education for the Center for Problem Solving Courts and the National Association of Drug Court Professionals.
After serving almost 32 years on the bench, Judge Finlay knows what happens in family court. She has the strong desire to assist families through divorce mediation and private judging. A true problem solver, her experience and compassion count.