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Divorce Mediation and Woman Abuse:
Danger and Potential

The issue of violence against women and children poses serious dilemmas for dispute resolution professionals in the field of divorce. This is particularly true for family mediators, who are faced with numerous questions and challenges regarding the appropriateness of their methods in cases of woman abuse. Positions on the issue of divorce mediation and woman abuse have become highly polarized, with some women's advocates asserting that mediation places women in a potentially harmful situation in which an unequal power relationship cannot be balanced, while mediation proponents claim that mediation is an empowering forum for abused spouses to resolve issues of dispute in divorce in a fair and equitable fashion.

This polarization has tended, however, to largely obscure the actual needs and interests of abused women seeking to terminate their marital relationship as a solution to the physical and emotional abuse suffered at the hands of their partners. Our starting point thus should not be, "Is divorce mediation appropriate or inappropriate in situations of woman assault?"; rather, one might ask, "What do women and children need to ensure a safe and equitable divorce transition, and what range of services and mechanisms can be put in place to resolve disputed issues in a manner that promotes this safety and equity?" Such a reframe allows for a closer and more honest scrutiny of both the dangers and potential, the risks and benefits, of a variety of dispute resolution alternatives in divorce, including family mediation.

Mediation has been defined as "an alternative to violence, self-help, or litigation...(It is) the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensaul agreement that will accommodate their needs. Mediation is a process that emphasizes the participants' own responsibility for making decisions that affect their lives. It is therefore a self-empowering process" (Folberg & Taylor, 1984, p.3-4, my emphasis). A concise definition of "woman abuse" is somewhat more elusive. It must first be acknowledged that domestic violence is but one manifestation of the abuse of women as a societal problem; given this context, abuse may be defined as "the use or threat of physical, psychological, emotional or economic intimidation, coercion or force. Abuse functions to secure power and control for the abuser and to undermine the safety, security, self-esteem and autonomy of the abused person" (Toronto Forum on Woman Abuse and Mediation, 1993, p. 3, my emphasis). Given these definitions, the fundamental problem with the use of mediation in woman abuse situations centres around two opposing concepts: the presumption of mediator neutrality versus the inherent and marked imbalance of power in abuse situations. In the face of mediator neutrality, women in mediation are not only rendered powerless to adequately represent their needs and interests in the divorce, but seriously compromise their safety at a time during which violence is likely to escalate.

The concerns of women's advocates about the use of mediation in woman abuse situations may be grouped into four main categories: the inadequate training of family mediators about abuse in intimate relationships; the lack of pre-mediation screening for power imbalances and woman abuse, and assessment of safety risks; the paucity of specialized procedures for dealing with power imbalances and ensuring the safety of abused women in mediation; and the lack of effective alternatives to mediation where women cannot contemplate directly negotiating with their former partners (Toronto Forum on Woman Abuse, 1993).

In recent years, the mediation community has made a concerted effort to respond to these and other concerns, and efforts at dialogue and collaboration with women's advocates have resulted in a critical examination of the risks as well as potential benefits of mediation, given the special needs and interests of abused women. In addition, mediation theory and practice has vigourously challenged the notion of mediator neutrality, and interventionist models of practice have been developed. The recognition that mediators cannot remain neutral in situations of marked power differential between divorcing parties, and neutral vis-a-vis woman abuse, has been accompanied by a heightened awareness of the unique needs of abused women in mediation. This has resulted in "a reexamination of if, when, and how dispute resolution theory and skills can be adapted and applied safely and fairly to the practice of mediation when abuse is a factor" (Toronto Forum on Woman Abuse, 1993).

In 1992 and 1993, representatives from the major international mediation associations, including the Academy of Family Mediators, Family Mediation Canada, the Association of Family and Conciliation Courts, and the Society of Professionals in Dispute Resolution met with approximately 50 women's and children's advocates for the purpose of exploring concerns about mediation in cases of abuse. Together they produced the Report from the Toronto Forum on Woman Abuse and Mediation, with recommendations addressing the education and training of mediators, the skillful screening of candidates for mediation, safety issues in mediation, and alternatives to mediation for abused women. Central to this document is the conclusion that "The vital interests of abused women and their children and the integrity of the practice of mediation require an acknowledgement that mediation can jeopardize the safety and well-being of abused women and their children. A rebuttable presumption against the use of mediation in cases of domestic abuse ought to be affirmed and should shape all policies and protocols regarding the specialized use of mediation in cases of abuse"

In response to the Forum's recommendations, Family Mediation Canada has adopted the following Policy on Mediation and Spousal Abuse:

1. Individual screening meetings to determine voluntariness, appropriateness, motivation and safety to mediate should be a mandatory practice standard. These screening interviews should include detailed questions to each party to explore control, power and abuse issues in the relationship between the parties.

2. Where abuse is reported/identified the mediator shall:

Given this policy as a foundation, three main guidelines regarding the place of mediation in cases of woman abuse may be applied to the divorce arena:

1. A rebuttable presumption against the use of mediation in cases of woman abuse suggests that where effective alternatives exist, mediation may not be the option of choice for many abused spouses. The potential benefits of mediation in each case must be carefully weighed against the potential risks involved in its utilization by abused women, and involvement in the mediation process must always be a completely voluntary endeavor.

2. Mediation has the potential of empowering abused women and challenging assaultive partners to take responsibility for their actions. Given strict guidelines for its use, including ensuring the safety needs of abused spouses, mediation may be the option of choice for some abused spouses.

3. It is inherently disempowering to assume that, with safety measures in place, abused women are incapable of effectively representing their needs and interests in a non-adversarial forum of dispute resolution, and to deny them the opportunity of making use of the mediation process.

When there are questions about the suitability of divorce mediation in a particular woman abuse situation, mediators should err on the side of caution. But what is often overlooked is that denial of the right to mediate one's dispute removes one of the abused woman's avenues for dispute resolution and the pursuit of justice. Taking decisions out of a woman's control by removing the alternative of mediation as an option to address ongoing disputes further reduces her power and contributes to her victimization.

Further, in our zeal to protect battered spouses by means of litigation of divorce-related disputes, we may be exposing women to greater danger, as litigation of custody, access and financial issues in divorce is unlikely to directly address the issue of abuse and underlying power imbalances. The adversarial tone of judicial proceedings has been associated with marked escalation of conflict between divorcing parties (Kruk, 1993), which can and does endanger women's safety. Litigated divorce rarely ends the violence: women suffer the greatest risk of injury or death during the divorce transition, as 46% of battering occurs after separation (Corcoran & Melamed, 1990) and 73% of battered women seeeking emergency medical services sustain their injuries after separation (Hart, 1990).

These statistics apply overwhelmingly to situations where divorce issues are dealt with through traditional adversarial means. Mediation may thus be a preferred alternative from the point of view of identifying dynamics of power and control which might otherwise remain hidden, addressing abuse directly, dealing with power imbalances, addressing women's safety concerns, and promoting cooperative resolution of disputes. Many women thus feel that mediation is the safest vehicle to end their marriage, particularly as they are likely to maintain contact with their former spouses in relation to postdivorce parenting.

Couples rarely disclose their violence voluntarily, with both partners minimizing and denying it due to fear, embarrassment, or not perceiving it as a crime (Pagelow, 1990). With special procedures in mediation, however, it has a much higher likelihood of being identified. Pre-mediation screening for spouse abuse, and assessment of the power dynamics of the couple relationship, are critical. The impact of the abuse needs to be carefully evaluated to determine whether the abused spouse is in fact capable of negotiating with the batterer.

In relation to screening, two essential conditions need to be met before divorce mediation in woman abuse cases can proceed:

1. The assaultive spouse assumes responsibility for his violence, at least in terms of recognition of the impact of his actions on the abused spouse, acknowledges the restraining beliefs and attitudes that have prevented him from taking full responsibility for his behaviour, and recognizes his partner's right to autonomy.

2. The abused spouse assumes responsibility for her safety, and is capable, without fear or threat of intimidation, of representing her needs and interests in the mediation negotiation.

The mediation community has made significant progress in developing screening/assessment procedures and protocols in regard to woman abuse (Girdner, 1990; Mathis, 1991). Screening takes into account the continuum of abusive behaviours in families; at one end of the continuum are severely traumatized and isolated women, clearly suffering the psychological consequences of abuse and fearful of further violence. At the other end are women who have the support of family, friends, and advocates, who are more likely to make effective use of mediation services. Mediation can help some abusive families, while harming others; screening identifies those cases for which mediation is contraindicated, and those for which special procedures need to be in place.

When abuse is detected, special procedures for mediation are needed if mediation is to offer the opportunity of directly addressing violence issues, assisting the parties to negotiate a divorce agreement which controls the batterer's contact and ensures the woman's protection. When abuse is identified and acknowledged, the mediator must create an environment where the imbalance of power between the couple is addressed and neutralized. An interventionist stance vis-a-vis abuse and power imbalances is needed, with the abused spouse provided with the opportunity to be heard and to know that bringing forward her needs will not result in further abuse. Alternatives at the mediator's disposal in this regard include shuttle mediation, limiting direct face-to-face negotiation between the parties, and the presence of a lawyer or women's advocate during the sessions. Further, mediation is in addition to legal responses, not in place of them, and can reinforce the criminal nature of the abuser's behaviour. As part of the process, women can be educated about their legal options, and remedies such as protective restraining orders and criminal charges can be encouraged. The legal consequences of assaultive behaviour can be pointed out to assaultive spouses. At each session, mediators can check privately with each party to monitor the terms of any safety plan established to ensure that abused spouses feel safe and free from intimidation. Information on services to abused spouses and batterers can be provided, and participation in treatment can be made a condition of continuing mediation. Another safeguard is the requirement that participants have legal representation to keep them advised of their legal rights and obligations.

In divorce mediation, women can be assisted to set boundaries, as well as emergency procedures, and the parties can jointly negotiate guidelines for future behaviour. If abuse occurs during the course of mediation, if the abusive spouse violates the safety boundaries that have been established, and if the mediator is unable to control the abuser's domination and achieve a fair agreement, mediation should immediately terminate, and the abused spouse be linked with alternative resources.

In sum, the traditional neutralist approach to conflict resolution is clearly inappropriate in spouse assault situations. Rather, voluntary mediation utilizing multiple sessions, facilitated by a mediator with a firm knowledge and skills base regarding family violence and its impact, who views woman assault as a criminal act, and assumes a highly interventionist and educative stance in mediation is critical. Above all, it should be recognized that woman abuse results in a marked imbalance of power between the former spouses. The mediator must find ways of addressing this to ensure that the abused spouse is able to represent her needs and interests and negotiate in an effective manner, and the assaultive partner takes responsibility for his behaviour and how it has impacted the other. There are many strategies and resources, both within the mediation sessions and outside, to assist the mediator in accomplishing theses goals.

To return to the question, "What do women and children need to ensure a safe and equitable divorce transition, and what range of services and mechanisms can be put in place to resolve disputed issues in a manner that promotes this safety and equity?" mediation should remain as an option for abused women, but only with a full appreciation, on the part of all parties, of its risks and benefits. There are dangers in using mediation in cases of woman abuse, but when mediators are fully trained with respect to salient issues in family violence, skilled in power balancing strategies, when women's safety is assured and specialized resources are in place, mediation has the potential to end the violence and promote fair agreements. We need to empower abused women not by presuming to know what is best and denying them a potentially effective mechanism of dispute resolution, but providing all of the possible options to get their needs and interests met during the divorce transition.

References:

Corcoran, K. & Melamed, J.C. (1990) From coersion to empowerment: Spousal abuse and mediation, Mediation Quarterly, 7 (4).

Family Mediation Canada (1993) Draft Policy Proposal: Mediation and Spousal Assault, in Resolve, 7 (3).

Folberg ,J. & Taylor, A. (1984) Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation. San Francisco: Jossey-Bass.

Girdner, L. (1990) Mediation triage: Screening for spouse abuse in divorce medaition, Mediation Quarterly, 7 (4).

Hart, B.J. (1990) Gentle jeopardy: The further endangerment of battered women and children in custody mediation, Mediation Quarterly, 7 (4).

Kruk, E. (1993) Divorce and Disengagement. Halifax: Fernwood Publishing.

Mathis, R. (1991) Systematically Violent Families and Systematically Compatible Outcomes. Paper presented at the Academy of Family mediators Annual Conference, Seattle.

Pagelow, M. (1990) Effects of domestic violence on children and their consequences for custody and visitation arrangements, Mediation Quarterly, 7 (4).

Toronto Forum on Woman Abuse and Mediation (1993) Report of the Toronto Forum on Woman Abuse and Mediation. Waterloo: The Fund for Dispute Resolution.

Edward Kruk, M.S.W., Ph.D.
Assistant Professor, U.B.C. School of Social Work
and Family Mediator, Vancouver, B.C.