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Divorce Mediation and Family Violence

As divorce mediation is becoming a more widely accepted alternative to the adversarial system, it is also receiving criticism, particularly from women's advocacy groups. Many feel that mediation cannot provide a fair option for any woman in an abusive relationship; and some feel that all relationships are abusive to some degree. The logical conclusion is that mediation is never a fair option for women. Given that mediation takes place behind closed doors "usually with no advocates present for either party" abuse, intimidation and power imbalances can greatly affect the outcome and even jeopardize the woman's safety and well being. The mediator is viewed as being inescapably an extension of the larger society which accepts and perpetuates male dominance.

One consideration in responding to these criticisms is that mediation is practiced in a wide variety of forms. mediation is not a uniformly defined process. Factors that vary include: the training, experience, values and awareness level of the mediator; the methods used to screen for and deal with abuse and power imbalances; the use of separate meetings, with the mediator moving between the parties; the involvement of advocates, including lawyers; and the referral sources used if mediation is not appropriate. Within each of these areas, there is undoubtedly room for criticism of the practice of mediation as it currently exists.

My own practice of divorce mediation spans over a decade, and I am not always comfortable looking back at some of the decisions I have made. Early on in my practice, I naively believed the advice of some of the leaders in the field who were adamantly opposed to meeting separately with the parties for any reason. They felt (and some still do) that both parties were in mediation by choice and that either could terminate the process if it was not working for them. They made only a passing reference to power imbalances, intimidation, violence, control and abuse. Separate meetings (sometimes call caucusing) were considered a risk to the mediator's neutrality.

In much of the mediation training I received, there was no mention of the increased risk to women of being harmed or killed by their partners at the time of separation. I started out so deeply convinced of the power and value of the mediation process that I did not sufficiently question its appropriateness in some situations. All of this has changed dramatically for me in the past few years thanks to the loud voices of women opposing the practice of mediation when it jeopardizes the safety of women and children.<

While in many cases, it is not difficult to determine whether or not mediation is appropriate, many couples fall into the large grey area in the middle. At this time, there is no widely used protocol for screening and referral. It is up to each mediator or mediation service to determine the degree to which screening will be used. There is, in my opinion, undeniable risk if careful screening is not sensitively applied and if a clear protocol is not followed for dealing with cases of abuse.

Mediation associations across the continent are debating the issues of certification, training and standards of practice. At this time, there are no universal standards, so virtually anyone can call themselves a mediator. In the meantime, many divorcing couples are seeking the assistance of a mediator without any clear criteria for selection of a qualified professional. In my experience, too, most clients do not ask about the training or credentials of the mediator.

Women in abusive relationships have very few options for safely obtaining a divorce. Women's groups in B.C. and elsewhere across the country have put forward recommendations including that women's advocates be available to help navigate through the male dominated court system. They also recommend that mediation services provide security measures for the protection of the women and children who come to them as clients. So far, their recommendations have not yet been implemented.

I do believe that mediation is an important method for helping couples separate with greater understanding, less trauma, and more hope for cooperative parenting after divorce. I am concerned, however, that it is taking so long to strengthen the weak links in the practice of mediation. The Mediation Development Association of B.C. is playing a leadership role in setting standards for its members, yet this is just the first step in providing a quality service. Practitioners, trainers, clients and advocates need to continue to work together to ensure that this field responds to the needs of families for safe and fair divorce process.

Marje Burdine, M.Ed.

Marje Burdine is a family and organizational mediator and therapist in private practice and the founder of the Centre for Conflict Resolution Training, Justice Institute of B.C. She has a Master Degree in Counselling Psychology from U.B.C.