By Abby Tolchinsky and Ellie WertheimDecember 13, 2010For years, the conventional wisdom in the mediation community has dictated
that there are cases for which mediation is not indicated. Among the
traditional red flags that would preclude participating in a mediation are
substance abuse, for example, or mental illness. And, most commonly cited,
mediation is inappropriate for cases in which there has been domestic
violence. The common characteristic each presents is a likely power
imbalance-one that cannot be effectively addressed or corrected by the
mediator. For instance, are drug abusers making decisions for fear of what
may be exposed about them in court? Are they legally capable of making
decisions at all? At the same time, mediation is an elastic process, one
that is meant to adjust to the needs and capacities of the parties, to
accommodate each individual and the conflict he or she seeks to resolve.
These two ideas-elasticity and ruling out mediation-present a tension, one
that mediators grapple with, to some extent, in every case that comes before
them. Generally, mediators tend to bend, to try and help re-balance the
power, thereby assisting parties in conflict in reaching resolution.
With that in mind, it is perhaps not surprising that the concept of
mediating cases in which domestic violence has occurred is
controversial-and, at the same time, gaining traction.
As a preliminary matter, all parties in intimate partner mediations must be
screened for domestic violence. Mediators training at Office of Court
Administration (OCA) sanctioned sites are required to attend domestic
violence training in order to sharpen their understanding of the cycle of
violence and the various ways in which it may present itself. Additionally,
OCA has issued two screening tools to be used in court-ordered mediations.
So, if the mediator is trained to screen for domestic violence and does in
fact detect a history of domestic violence, are there ever cases in which
mediation may still be considered appropriate? What would a “good case for
mediation,” which has entailed a history of domestic violence, actually look
like? And, perhaps most important, who makes the determination that
mediation is a reasonable option?
In a recent article in the Hofstra Law Review
,1 Nancy Ver Steegh writes about differentiating among types and levels of
domestic violence when assessing suitability for alternative dispute
resolution.2 In order to screen out inappropriate cases, the focus should be
on a history or pattern of exerting power and control over an intimate
partner. Research has shown that coercive behavior escalates over time, and
the consequences become more severe and dangerous. For example, when an
intimate partner prohibits contact between a wife and her friends and
family, that isolation is a manipulative element of the battering cycle, one
that entails consequence (for both compliance and non-compliance). It is
precisely this type of coercive and controlling behavior with consequences
that would be a red flag for mediators, one indicating a severe power
imbalance coupled with manipulation that will likely inform the process and
outcome of the mediation.
Antoinette Delruelle, an attorney in the Matrimonial Unit of the New York
Legal Assistance Group and coordinator of a panel in March on ADR and
domestic violence at Fordham Law School, further distinguishes among types
of violence, “Of course, to a certain extent, there is control in every
relationship. But here we are using the word ‘control’ to mean demand,
surveillance and consequences.” In mediation, the parties need to be able to
speak freely, to articulate their needs and interests, to disagree and be
able to say why options for how the conflict may be resolved either do or do
not work for them. If there is a pattern of control and violence, the
likelihood that the victim has that ability to speak freely and to disagree
as needed-in other words, has equal bargaining power-is remote.
But what of the more common scenario that presents itself in mediation: A
couple with no history of coercion or control with consequences, reports an
incident of physical violence. This incident occurred in conjunction with a
verbal argument, typically relating to the terms of separation or divorce,
such as who will see the children at a certain time, or who will retain a
certain beloved object from the marital home. In the face of much
controversy surrounding this issue, we would submit that, in certain cases,
with isolated and/or low-level incidents of violence, mediation may proceed
with a skilled, trained mediator.
In a case with a domestic violence history, the mediator must ensure the
safety of the parties. There are a number of possibilities as to how this
may be accomplished. One option may be to use a caucusing model of
mediation. This model resembles traditional “shuttle diplomacy” and limits
the physical contact between the parties. Aside from little contact, an
additional advantage is that the victim may speak more freely to the
mediator, not only about her needs and interests as they pertain to the case
at hand, but also about her level of fear or concern for her physical
One limitation inherent to this model: it lacks the transparency many
mediators consider indispensable to the process. In particular, with
mediation, caucusing may afford the violent perpetrator an opportunity to
further his manipulative behavior during private communications with the
mediator. An additional possibility toward rebalance is to mediate with
experts present, whether a divorce coach, or an attorney lending support to
the parties such that they may voice their priorities without apprehension
of repercussions or manipulation. If there is any threat of physical
violence, the mediator must create a safety plan with the victim so that she
may be present at the mediation and may come and go safely.
At the Dutchess County Mediation Center, there is a mediation program run in
conjunction with Battered Women’s Services. This collaborative effort
successfully screens and supports cases for mediation in which there is a
history of domestic violence. The process commences with a detailed
screening of both parties. Throughout, there are comprehensive guidelines
intended to secure the safety of the victim. These entail educating the
mediator as to the history of the couple’s dynamic and empowering the victim
to flag and respond to potential violence.
The pre-screening procedure includes a separate conversation with each party
(caucusing) and a safety planning session with the victim-safety planning
for both her life and for the mediation session itself. Most critically, the
mediator and the victim establish a signal to be used by the victim,
indicating to the mediator that the batterer is exhibiting pre-violent
signs. The mediator then bears the burden of ending the session without
disclosing the private communication from the victim.
According to Julie Denny, an experienced mediator in New Jersey formerly
affiliated with the Dutchess County Mediation Center, these safeguards were
rarely called upon. “I was struck by the strength and courage of these
women. Once they decided to go forward, they were determined to mediate and
these signals did not happen often. Mostly, they proceeded like any other
Perhaps the most compelling question for the domestic violence and mediation
communities is: Who decides whether mediation is appropriate from case to
case? Mediators are, ultimately, in control of the process in the mediation
session. But beyond that, a skilled mediator must weigh the sanctity of the
process, the safety of the parties and the autonomy of the parties.
Fundamental to mediation is parties’ self-determination-the right and
ability to decide whether this process, fully voluntary, is right for them;
and the right and ability to make lasting decisions for themselves in the
Add to this the following: For many victims, the prospect of a court battle
presents the potential for perpetuating the cycle of control. “For some
batterers, it’s the only way of getting a date with their ex-wife,” says Ms.
Delruelle. “Even bad contact is some contact. The batterer may seek
modifications of orders, seek continuances and try to extend and increase
the amount of time he sees his victim in court.” Of course, there is a
possibility of these delays in mediation as well, but mediation, unlike
court, is a voluntary process where a party’s appearance and participation
cannot be compelled-and it goes without saying that a mediator must be alert
to the use of these manipulative tactics.
In the domestic violence advocacy community, it is received wisdom that
victims know best: They know when it is safe to leave a batterer, and they
know whether it makes the most sense to seek a stay-away order of
protection. Battered women are treated as autonomous adults. Should that
paradigm shift just because they are in an alternative process such as
mediation? Just as it is up to victims whether to assist with a prosecution
of the batterer in criminal court, it should be up to them to “opt out” of
the court process and with safety and self-determination at the forefront,
negotiate directly the terms of their settlement.
Abby Tolchinsky and Ellie Wertheim are partners at Family Mediation.
1. Ver Steegh, Nancy: “The Uniform Collaborative Law Act and Intimate
Partner Violence: A Roadmap for Collaborative (and Non-Collaborative)
,” 38 Hofstra L. Rev. 699 (Winter 2009).
2. While Ver Steegh’s article focuses on collaborative law, many of her
points pertain to mediation as well.