By Antoinette Delruelle, attorney and mediator with the New York Legal Assistance Group.
Before becoming a mediator, I represented victims of domestic violence (DV) and intimate partner violence (IPV[1]) in family cases and divorces for nearly two decades for the New York Legal Assistance Group, a free legal services organization in New York City. From this experience, the prevalence of IPV became clear—it transgresses race, ethnicity, religion, age and socio-economic background. According to the CDC, a quarter of women and ten percent of men experience DV or IPV in their lifetimes. As a divorce attorney, I find violence even more prevalent. It is imperative for mediators to understand IPV, how to screen for it, and how to determine whether mediation is the right course of action for a couple.
A pattern of coercive control is the hallmark of IPV. This control is exerted through various means including physical, psychological, emotional, financial and sexual. Mediation is based on five fundamental pillars—autonomy, good faith/fair dealing, judgment, information, and safety—and when coercion and control are the modus operandi for one of the parties in a conflict, these pillars will be wobbly or completely non-existent. As consequence, not only will mediation fail, but it can bring more harm to the survivor of IPV and their children.
Separation is the most dangerous time for survivors and we cannot mediate if a party is unsafe. For the person causing harm, the goal of the mediation is to maintain contact with the survivor for as long as possible in order to continue to coerce and control. Since the mediator has no power, the person causing harm could take advantage of the mediation process and endlessly change their mind and never agree on anything, drawing out the process to keep the survivor in their control. A court might take a long time, but in the end, a judge will make a decision.
Furthermore, parties need to be able to say what is important to them in mediation in order to reach a fair agreement that will last. When there is IPV, it can be unsafe for the survivor to disagree and explain why. Mediation also requires mutual exchange of information (including financial) which can be particularly challenging when the person causing harm is the gatekeeper to the couple’s finances. Another common source of tension in the mediation process revolves around parenting. If one parent is fearful of leaving a child in the custody of another parent, mediation would not be appropriate since the mediator has no authority to impose any conditions or certain behavior on any party.
These dynamics occur on a spectrum, with some cases being more extreme and dangerous than others. When screening cases, I try to find out how strong the five pillars of mediation are, using the SAFer Mediation Discussion Guide developed by the Battered Women’s Justice Project. Rather than unilaterally making the decision about whether to mediate, I give the person information about what is needed to successfully mediate (ex: can you disagree and speak your mind? Is the other party able to follow through on agreement and share important financial information? Etc.) so the party may come to the conclusion on their own that mediation would not work and why. I explore autonomy, good faith/fair dealing, and judgment before asking questions about violence. If I hear that the foundational pillars for mediation are not present, I don’t have to ask the painful questions about violence which we know re-traumatize survivors.
The danger of mediating the wrong case goes beyond a question of safety (though that would be sufficient to prevent mediation), as the mediation itself could change the facts and make it harder for the survivors and their children when they go to court. As mediators, we need to make screening as ubiquitous as the medical history our doctors take when they see us. This will allow us to make better decisions about whether or not to mediate. It can also help us structure the mediation to strengthen wobbly pillars where it is appropriate (ex: the parties’ attorneys should be in the room or the mediation should take place after discovery was done in court). Finally, the screening gives the survivors the information they need to make informed decisions about the next steps in their case.
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[1] DV involves parties who are living together. IPV involves intimate partners who do not live together.