Is Mediation ever appropriate in Cases involving Domestic Violence

Supporters of domestic violence victims look a...

The Empty Plate/Silent Victims display in Hawaii memorializes domestic violence victims (Image via Wikipedia)

From a September 28 post in Karl Bayer’s blog, Disputing:

A recent article in the Yale Journal of Law and Feminism entitled “Moving Out of the 1990s: An Argument for Updating Protocol on Divorce Mediation in Domestic Abuse Cases,” 22 Yale Journal of Law and Feminism 97 (2010), makes an interesting argument that many states need to reexamine policies banning or restricting mediation in divorce proceedings involving domestic violence.

I’m going to permit myself an observation on the article in question despite my only having read its abstract.  (I haven’t found the full text online.)

In the 1980s and 1990s, the feminist critique of mediation centred on how the process disadvantaged women as a whole. The mediation process was private, not accountable, and did not create or rely on precedent cases. In contrast, the legal system was public, accountable, rights-, and precedent-based. Consequently, it offered women much more of ‘a level playing field’ as well as legal protections and rights than the mediation process itself.

In evaluative mediation, the so-called ‘shadow of the law’ actually becomes a virtual party to the mediation process. So, in calling for the reform of policies on court mediation where DV is involved on the basis of the present realities of court mediation (evaluative not facilitative), the article is in a sense extending the former feminist critique of mediation as a whole: the more mediation resembles a legal process, the more acceptable it will be to women.

But is this the only way mediation in DV cases is acceptable? For me, the key question in DV cases is to customize a process that doesn’t deny a victim her voice or her options while at the same time ensuring her safety and protection. Since 2004, this type of approach has been implemented in Dutchess County, N.Y, through partnering mediators and DV counsellors: “The first rule in all such cases is the domestic violence itself is never a topic for mediation.”

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3 thoughts on “Is Mediation ever appropriate in Cases involving Domestic Violence

  1. yesitiswell

    Mediation, arbitration, and couples counseling are never good for the victim. There is no reason to go to any of those. Mediation and arbitration are meant to be FAIR, that’s fair, equal for all.

    In most cases of domestic violence, the fairness is non-existent. The perp will give even silent clues to the victim during mediation –to silence the victim, to control the victim.

    These things are never, ever ever appropriate or helpful to the victim. And since the mediation will only be helpful to one side, to the perp, then it is not working, and not appropriate and will be harmful instead of helpful to the victim.

  2. dialogicmediation Post author

    I do think it is important, among other things, to actively listen to the victim, to see whether or not she wants mediation. Otherwise, she risks being victimized yet again by having her autonomous decision-making taken away from her.

  3. yesitiswell

    That is all good, however, in the case of domestic violence, verbal abuse, sexual abuse, emotional abuse, her decision making powers or abilities are automatically taken away from her once the batterer or perp is in the same room, or in the same therapy.
    There is no separating the abuse from the victim
    as long as the perp or batterer is permitted to have any dialog with any therapist (i.e. joint therapy, couples therapy).

    Counselors do not seem to realize that but victims of violence know that as a constant truth and fact. Not as “their truth” but as a plain fact of life when domestic violence is involved. I understand that my opinion is a little different than yours and that is fine if you wish not to print this. I write just for the open exchange of different ideas.

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