THE ONGOING DEBATE ABOUT MEDIATION IN THE CONTEXT OF DOMESTIC VIOLENCE: A CALL FOR EMPIRICAL STUDIES OF MEDIATION EFFECTIVENESS
Susan D. Landrum
For approximately three decades, scholars, mediators, and domestic violence victims' advocates have debated whether mediation is an appropriate way to approach family law issues in situations where the parties have a history of domestic violence. Those debates have addressed whether mediation is ever appropriate where there is a history of domestic violence and, if so, when it may be used and how the mediation process can provide for victims' safety and fair mediation outcomes. Their concerns generally fall into four basic categories. First, there are challenges about how to define "domestic violence" when determining whether cases are appropriate for mediation, and legal definitions may not be fully compatible with how society, victims' rights advocates, or scholars understand "domestic violence" or "domestic abuse." Second, there are concerns about whether the mediation process can be fair, voluntary, safe, and neutral when the parties have a history of domestic violence. Third, there are concerns about potential outcomes of such mediations and whether those outcomes can be fair and safe for victims. Finally, there are public policy concerns that are also interwoven into the debates about mediation when there is a history of domestic violence, with some people concerned that mediation will have the effect of brushing mediation under the table or preventing abusers from being held responsible for their actions.
State legislatures, courts, and mediation programs have responded to these concerns in a variety of ways. Some states have approached the issue by exempting from family mediations situations where there has been domestic violence, while other state statutes do not provide for such an exemption. Court-sponsored and community-based mediation programs also differ in their approaches to domestic violence issues. Most programs have instituted a screening process to evaluate whether disputes are appropriate for mediation and whether the parties have a history of domestic violence that could affect the mediation, although that screening process varies significantly from one program to the next. Many mediation programs provide training for mediators to recognize signs of domestic violence and be able to manage situations where it becomes an issue, but not all do. There is almost universal agreement that mediators should having training in domestic violence issues, but less agreement about what that training should entail or how much training is adequate. Furthermore, although the focus is usually on the need for mediator training programs, some mediators and attorneys also argue that family law attorneys need better training in order to more effectively represent domestic violence victims in mediation, so that they can best represent their clients' interests and plan for their clients' safety.
Although much of the focus of family mediation specialists and victims' advocates has been on what happens prior to the mediation, such as the development of and use of screening protocols and mediator and attorney training programs, they have also stressed the importance of designing appropriate mediation processes in order to minimize the potential for power imbalances, intimidation, unfair agreements, and further violence or abuse. Much of the attention on the mediation process has been focused on two areas in particular: (1) the form of the mediation session, and whether it should involve caucusing, shuttle mediation, or other approaches to the mediation process; and (2) the presence of attorneys or support persons in the mediation session. An appropriate mediation process can reduce the potential for future violence and lead to more fair results that protect the legal interests of the victim.
Regardless of the ongoing debate about its appropriateness for domestic violence victims, mediation has become the norm in family law cases involving custody disputes, divorces, and property disputes. As a result, more and more mediations involve victims of domestic violence. At the same time, although there are a number of studies that compare parties' perceptions of mediation, private negotiations, and litigation as methods of solving family law disputes, usually analyzing participants' satisfaction with the process and process results, very few empirical studies have evaluated the effectiveness of mediation in cases where there is a history of domestic violence. Those studies are very limited and involve only a small number of subjects, and, although they contribute to a preliminary understanding of the issues discussed in this article, much more needs to be done to fully understand what effects domestic violence may have on the mediation process and outcomes—and what mediation programs, mediators, and attorneys can do to protect victims and make the process more safe, fair, and effective. In addition, because of the variations in how programs address screening and mediator training issues, among other aspects of the mediation process, empirical data is necessary to evaluate which approach(es) are better at addressing domestic violence issues in family mediations and, most importantly, which ones help to improve fairness of mediation outcomes and reduce future incidents of domestic violence.
So what should such a study encompass? In order to fully understand whether mediation programs are effective in handling mediations involving parties with a history of domestic violence, we need to develop our understanding of the connection between mediator training and effective, safe, and fair mediation screening, processes, and outcomes; whether particular types of screening are more effective at identifying cases that should not be mediated or need special protocols in place; what perceptions mediation participants have of the mediator, mediation process, and mediation outcome and how those perceptions correlate, if at all, to mediator training and process design; comparisons between different programs that have different approaches to these issues; and whether other factors such as the race, ethnicity, income, educational background, etc. of the mediation participants have any influence on what works and does not work in this context. With those goals in mind, a large-scale study of mediation participants, from a variety of different mediation programs that use different approaches to screening, mediator training, and other aspects of the mediation process, would provide a greater understanding of what currently works and what could be done better in mediating family law disputes where the couple has a history of domestic violence. It is not enough to assume that screening, training, and other innovations are working—we must know that these approaches are effective. Regardless of whether everyone agrees about the appropriateness of mediation in these situations, it is indisputable that mediations do take place and will continue to do so. In order to work towards a mediation process that is safe, fair, and less traumatic for victims of domestic violence, we have to know what works and what does not.
The extended version of this article was published in the Cardozo Journal of Conflict Resolution, Volume 12 Issue 2, published in Spring 2011.