This resource looks at the debate of whether family mediation is a suitable form of dispute resolution in family mediation cases where the element of domestic abuse is or has been present.
Family mediation is increasingly the default option when it comes to family dispute resolution relating to child arrangements and/or assets and finances. It is often the most effective way of resolving disputes and allowing all parties to move forward with their lives at a fraction of the cost of court proceedings. The family mediation process is far more contentious when domestic abuse has been part of a family dynamic. In this resource, we look at some of the views presented for and against family mediation in such cases.
Many critics of family mediation argue that, in the instance of domestic abuse, the balance of power within a relationship will have shifted so far to one side that even the most skilled family mediator will be unable to compensate for this disparity. Family mediation demands that all parties concerned are able to engage in shared decision-making, honestly and openly, and arrive at consensual resolutions. It’s a compelling view that an abused partner may often not feel able to express themselves and their needs fully and will place the needs of a partner before theirs, even in the presence of a skilled family mediator.
Victim at risk
Another argument often presented is that the family mediation process itself places an abused person in danger and at increased risk of further abuse. It may bring an abuser into contact with their victim for the first time since separation and present a trigger for further contact and harassment. There is also the feeling amongst many that by sanctioning family mediation in such cases, society is failing to treat domestic abuse as the crime that it is and that agreements arrived at through mediation are less enforceable than court orders.
In light of these criticisms, the primary view for family mediation is that the family mediation process can be far more beneficial than harmful in many instances where domestic abuse has been a factor in a relationship. Most proponents of family mediation would accept that there are some cases where family mediation would never be appropriate. For example, the culture of physical and mental abuse is so overwhelming and renders the victim incapable of entering into shared decision-making. Abuse does, however, exist over a continuum, at one end of which, there will be relationships where abuse is historical. In such instances, family mediation may be productive.
In cases of domestic abuse, the view that the imbalance of power between parties can never allow for effective family mediation also ignores the ability of an accredited family mediator to rebalance this power relationship, allowing each party equal time and platform to express themselves fully. Indeed, research suggests that it is particularly in relationships where power dynamics are most unbalanced that family mediation versus other forms of dispute resolution is most effective.
Family mediation can also be an effective platform for getting abusers to commit to treatment. The adversarial system often encourages abusers to remain in denial about abuse, withholding this opportunity from them and failing to provide any meaningful closure for the abused partner. Family mediation, on the other hand, provides an opportunity to address the abuse in a safe, neutral environment and devise safety mechanisms and conflict management strategies for eliminating it. Effective family mediation can, in some instances, help break cycles of abuse, particularly in combination with other therapeutic approaches.
Safety of parties
As a family mediation provider, we regularly carry out family mediations where there has been documented or an accusation of domestic abuse. During the Mediation Information Assessment Meeting, it is the duty of the family mediator to ensure the parties’ safety throughout the family mediation process. If they feel parties may be at risk of harm at any moment, they will end the family mediation process. Here at Access Mediation Services, we have alternative mediation methods to ensure parties’ safety at all times. Family mediation via the telephone, Zoom or via shuttle mediation are ways to negate possible harm to parties. Shuttle mediation is whereby a family mediator would separate parties into separate calls or virtual spaces so you never have to see or hear your ex-partner, and the family mediator relays the discussion from party to party.
You can also express your concerns to the family mediator in relation to moving forward with family mediation where you feel there would be a risk to your safety. It is both your’s and the mediator’s decision as to whether family mediation is safe enough to continue.
What is defined as domestic abuse?
Domestic abuse is defined as multiple incidences or a single incident of behaviour deemed as controlling, coercive, threatening, degrading, physical violence, or sexual violence. The perpetrator of domestic abuse can be a partner (whether married or unmarried), a family member or close relation. Domestic violence can be received by anyone who is in a romantic relationship with their partner.
Abuse can take many forms: Psychological, emotional, financial, physical, coercive, and sexual.
Effective family mediation is dependent upon the willingness and ability of all parties to enter into conflict resolution in a safe, respectful space. In many cases of domestic abuse, this will clearly not be possible. There is certainly no clear case for the blanket rejection of family mediation in domestic abuse cases. Weighing the benefits of effective family mediation, excluding families dealing with domestic abuse from family mediation programmes, would be counterproductive.
If you want to know more about family mediation, please schedule a free, no-obligation consultation. We have family mediation centres across the country and also provide it via phone and Zoom.