October is Domestic Violence Awareness Month and it is important to talk about an unfortunate fact that all divorce and family law mediators will encounter: domestic and intimate partner violence. Domestic violence is not obvious or easily recognized in most cases, but it is extremely common. According to the National Domestic Violence Hotline more than 1 in 3 women and 1 in 4 men in the United States will experience rape, physical violence, and/or stalking by an intimate partner and, on average, 24 people per minute are victims of rape, physical violence, or stalking by an intimate partner. Additionally, 1 in 4 women and 1 in 7 men in the US have been the victim of severe physical violence by an intimate partner.
It is a fact that divorce and family law mediators will work with couples where domestic violence has occurred or is still occurring. If you’re mediating a divorce or family law matter, it is likely an extremely dangerous point in time for the victim because most domestic violence related deaths take place after the victim tries to leave the relationship. Additionally, victims, for many reasons, will hide or minimize the abuse, sometimes so much so that they don’t realize they are victims until much later. Because of this, divorce and family law mediators need to be alert to the possibility of domestic and intimate partner violence and take steps to ensure mediation is conducted in a safe manner for everyone involved.
Ensuring voluntary, consensual, and confident agreements is always part of the mediator’s job but is of the utmost importance in a domestic violence situation. The mediator must understand that a domestic violence victim might not have the confidence to make a decision for themselves or they may be unable to advocate for themselves due to fear of repercussions from their abuser. They are likely to question their own judgement. The victim might still be under the control of the abuser, especially when the abuser uses coercive control tactics to terrorize the victim.
On the other hand, mediation might be the first step for a victim to gain confidence and achieve freedom from their abuser. A victim might want to enter into an objectively “bad” agreement because, subjectively, that “bad” agreement is well worth the cost of getting away from their abuser. Maybe the individual declined alimony because they were scared of their abuser or maybe they declined alimony because they would be free and untethered to their abuser for the first time. The mediator must carefully evaluate both parties and if the mediator thinks any individual is not making an agreement freely and voluntarily, the mediator must terminate the mediation.
The mediator’s job isn’t to decide whether an agreement is good or bad for anyone. The mediator’s job is to ensure that mediation is safe for all individuals involved and that all agreements were entered into voluntarily, consensually, and with self-determination. So what should a divorce and family law mediator do and how can the mediator facilitate a safe mediation for everyone? Here are some ideas:
Domestic Violence Training. First and foremost, any individual who intends to mediate divorce and family law matters should take specialized domestic violence and intimate partner abuse training. A family mediator should continue to take as much training as possible and should do so regularly.
Domestic Violence Screening. Mediators should send each client a domestic violence screening questionnaire as part of the standard paperwork. A good practice is to send the questionnaire with an intake packet or other initial documents. The mediator should require the form returned as a condition of mediation.
Facilitate a Safe Mediation. If there is any concern or indication that there has been domestic violence between a couple, the parties must be kept separate for their safety and to ensure that the mediation remains voluntary and uncoerced. Generally, the best way to ensure the physical safety of all individuals is to conduct the mediation online and prevent any direct contact between the victim and abuser. If you cannot conduct the mediation online because of your local rules, then have two separate rooms spaced as far apart as possible set up for both individuals for a shuttle-style mediation. It is best practice to utilize rooms with two ways to enter and exit so that no one can block the only exit. Stagger the arrival times and always have the victim leave first so that the perpetrator doesn’t have the opportunity to follow the victim after the mediation.
· Provide Resources. Have domestic and intimate partner violence resources available for all clients in a neutral and easily accessible manner. For example, have a page on your website dedicated to domestic violence information and easily accessible hyperlinks to local resources or have pamphlets available in your office.
· Spread Awareness. Talk with your colleagues, other mediators, and attorneys to raise awareness of the prevalence of domestic violence. Meet with the local family law bar and alternative dispute resolution groups to discuss domestic violence and try to standardize procedures that will help mediators screen for domestic violence situations and keep victims safe. By talking about domestic violence and spreading awareness, we can help make mediation a safe space for everyone.
While October is Domestic Violence Awareness month, it is important to talk about domestic and intimate partner violence all year long because spreading more awareness may save someone’s life one day.
Sara A. Bush is a family law attorney and mediator at Ashen & Bush Family Law in Denver, Colorado. Since 2016 Sara’s practice has been exclusively devoted to family law matters. In addition to her work as an attorney and mediator, Sara has been appointed to investigate and make recommendations affecting the best interest of minor child in domestic violence situations. Sara regularly takes domestic violence and child abuse trainings and tries to bring awareness of the prevalence of abuse within the family court system. You can find more information about Sara on her LinkedIn page.
Share this post: