Mediation Can Work for Juvenile-Perpetrated Domestic Violence: A Second Look at Family Violence Mediation

by Paige Schweitzer

I. Introduction

Domestic violence by juveniles against parents is a growing problem that tends to involve the court in parent-teenager conflict situations. Despite the impulse to send juveniles charged with domestic violence offenses to court, these sensitive family disputes receive little benefit from adversarial adjudication. Mediation of juvenile-perpetrated domestic violence in a safe, structured environment can provide benefits to juveniles and parents unavailable in litigation. Mediation shifts the focus from blame and denial to the development of conflict-reducing strategies for parents and youths. Critics of domestic violence mediation argue that the power imbalance and pattern of abuse present in most partner domestic violence situations prohibit victims from negotiating freely. [1] Juvenile-perpetrated domestic violence cases, however, do not typically involve a power struggle between the parties or a pattern of abuse, and therefore, these disputes are more appropriate for mediation.

Court-connected mediation programs can promote communication and development of problem-solving resolutions to reduce recidivism. Effective court-connected juvenile domestic violence mediation programs use screening mechanisms, procedural guidelines, and training qualifications to ensure that mediation is appropriate and that the process provides a secure forum for negotiating disputes. [2] Ohio's Franklin County Court Mediation Program for Youth Charged with Domestic Violence Offenses is a well-organized court mediation program whose policies reflect the structured process needed to mediate juvenile domestic violence cases. [3]

Conflicting provisions within Ohio's recently amended Rule 16 [4] regulating mediation embody the debate of whether or not mediation is appropriate for juvenile-perpetrated domestic violence cases. Interpretation of the Rule as a prohibition of all domestic violence mediation curtails the advantages of mediation for juvenile-perpetrated domestic violence. Mediation programs should construe Rule 16's conditions to mediate domestic violence as safeguards for effective resolution of juvenile domestic violence disputes, rather than as a prohibition of mediation for all such cases.

Part II of this paper will discuss the advantages of domestic violence mediation and the particular benefits of juvenile-perpetrated domestic violence mediation. Part III will discuss criticisms of domestic violence mediation and then rebut these criticisms in the context of juvenile-perpetrated domestic violence cases. Part IV will explain why court-connected mediation programs are important for resolving juvenile domestic violence disputes. Part V will examine mechanisms that make court connected programs effective, specifically screening procedures, procedural guidelines, and training requirements for mediators of juvenile domestic violence cases. Finally, Part VI will discuss the conflicting provisions of Ohio's Rule 16 and discuss why mediation programs should not construe the Rule as prohibiting mediation of juvenile domestic violence cases.

II. Advantages of Mediation for Domestic Violence and Particularly Juvenile-Perpetrated Domestic Violence Cases

A fundamental benefit of general mediation is that the process helps improve participants' capacity to negotiate efficiently. Parties who take part in the development of a resolution will be more apt to abide by it because they had a role in tailoring the solution to suit their situation. [5] By helping parties communicate their concerns and goals for resolving the dispute, the mediation process adapts to fulfill the participants' negotiation needs on a case by case basis. [6] Additionally, mediation in general is typically less expensive than traditional adversarial proceedings and can provide an alternative to litigation for participants with limited financial resources. [7]

In the context of domestic violence mediation, supporters of mediation claim that the process is a better alternative for domestic violence cases than the courts because it encourages parties to take responsibility for their actions. [8] In traditional litigation, parties "draw their battle-lines and the conflict between them escalates" as each party has an incentive to blame the other for their problems rather than admit responsibility for their behavior. [9] Litigation fails to "impress upon the abuser the criminality of his behavior because the system encourages him to deny . . . past abusive [conduct]." [10] Unlike litigation, parties in family violence mediation do not have incentives to deny past abuse because there is no trier-of-fact to adjudicate the case. The process actually encourages parties to seek help because they can commit to treatment and address the violence without concerns that a judge or jury will consider the abuse in making a determination. [11]

Furthermore, mediation of domestic violence cases can provide victims with a sense of empowerment because the process can enable participants to end violence by "serving as a model of conflict resolution." [12] A goal of domestic violence mediation is to establish guidelines to manage future relations between the parties, and the process of generating resolutions is a template by which parties can base future conflict resolution methods.

In the context of juvenile-perpetrated domestic violence cases, mediation permits parents and children to take ownership of the problem and the resolution by assuming responsibility for their actions and taking control over future relations. [13] The goal of the process is to develop a plan to stop domestic violence by juveniles, [14] and mediation provides a model of dispute resolution that youths can use to manage future potential conflict. Furthermore, mediation allows parents or guardians to maintain control over the decision-making processes within the family while discussing issues pertaining to the incident of violence by the juvenile. [15]

Mediation is a forward-looking process, and in the context of juvenile domestic violence, the process encourages parents and children to establish guidelines governing future family interaction. [16] Teenagers generally lack the life experience necessary to hone negotiation skills. Therefore, mediation is especially useful to offer juveniles problem-solving mechanisms that they can use in future dealings with their parents and in other parts of their lives as well. [17]

III. Criticisms of Domestic Violence Mediation and Rebuttals to These Criticisms in the Context of Juvenile Domestic Violence Disputes

The primary criticism of mediation for domestic violence disputes is that a power imbalance between the aggressor and the victim can prevent the victim from negotiating with autonomy. [18] Opponents of domestic violence mediation are generally concerned with the imbalance of power between men and women in an abusive spousal relationship. [19] In partner abuse situations, the abuser "uses the threat of violence to maintain power over every detail of the victim's life, and the "violence is rooted in a struggle for . . . control." [20] If a woman is abused and subjugated by her partner, she is not free to choose resolutions that satisfy her best interests. [21] The power struggle destroys the equal level of control necessary for an effective mediation, and the mediator cannot compensate for this difference in control. [22]

Furthermore, in situations of partner abuse, there is often no specific conflict to resolve, but rather a pattern of domination by an abuser, which is not conducive to the conflict management process of mediation. [23] In sum, because partner domestic violence generally involves unequal control and a pattern of abuse, critics claim that it is not compatible with the aim of mediation to resolve conflicts collaboratively. Therefore, opponents argue that mediation is not suitable for cases involving domestic violence. [24]

Juvenile-perpetrated domestic violence is a different story from partner-perpetrated domestic violence. The unequal control that characterizes many spousal abuse situations is not common in juvenile domestic violence cases. [25] The argument against domestic violence mediation because of a power imbalance is weaker for juvenile domestic violence cases because the coercion resulting from unequal control is generally absent.

Domestic violence by juveniles contrasts with partner abuse in many cases because the juvenile perpetrator does not employ a pattern of fear, intimidation and domination over the victim. [26] In cases of juvenile domestic violence, the juvenile rarely attempts to isolate, humiliate, or obtain financial control over the parent, which is common in cases of partner-perpetrated domestic violence. [27] Control tactics can exist in juvenile domestic violence situations, but because they are so rare, they may be dealt with in the process of screening cases for mediation.

Another key difference between adult and juvenile-perpetrated domestic violence disputes is the presence of a specific conflict to resolve. Partner abuse situations are often characterized by patterns of domination, whereas juvenile domestic violence cases generally involve a specific conflict. [28] Mediation is more appropriate in juvenile domestic violence disputes than adult domestic violence cases because the process addresses specific issues that resulted in violence. Moreover, mediation can help parents and teenagers develop conflict resolution strategies to use when potential conflict situations arise in the future. Most juvenile domestic violence cases that benefit from mediation involve first time offenders with no prior criminal record who have not demonstrated a pattern of abuse. [29] Because mediation aims to identify and manage instances of conflict, it is more suitable to juvenile domestic violence disputes, which result from specific conflict rather than a pattern of control and abuse. [30]

IV. Motivations for Court-Connected Juvenile Domestic Violence Mediation Programs

State mediation programs for juveniles charged with domestic violence utilize mediation as an alternative to courtroom adjudication in order to generate resolutions unavailable in litigation. [31] The criminal prosecution system allows minimal, if any, opportunity to participate in the process and be heard. [32] Mediation, on the other hand, can improve communication between the participants, particularly when there is an ongoing relationship, like that of a family. [33]

The Franklin County, Ohio, Juvenile Court Mediation Service offers a mediation program, which began in 2001, for juveniles accused of misdemeanor domestic violence offenses and their families. [34] Prior to the creation of the mediation program, many juveniles charged with domestic violence against a parent were released after the preliminary hearing and returned to the home where the episode occurred. [35] The Court released the alleged offenders because it was not feasible to house them at the detention center until trial, but permitting juveniles to reenter the environment where the incident took place created safety concerns. [36] To address these concerns, the Franklin County Court gathered a group of Magistrates, prosecutors, public defenders, detention center administrators, case managers, and Court mediators to develop a program to mediate these types of cases. [37]

The Franklin County Mediation Program required much collaboration between the Court, the detention center, the Prosecutors, and the Juvenile Public Defenders to incorporate all players' goals and achieve success within the program. The Program has experienced success in the form of high rates of mediated resolutions, reports of program satisfaction, and low recidivism rates. [38]

Court programs that mediate juvenile domestic violence cases do so because juvenile-perpetrated violence is a domestic relations issue that is amenable to mediation. [39] Despite serious conflict between family members, the strong bonds within a family often give parents and children continued motivation to resolve problems using a collaborative process. [40] Mediation facilitates communication and exchange of information between parents and children, which traditional adjudicative processes do not provide. [41]

V. Mechanisms to Make Court-Connected Mediation Programs for Juvenile Domestic Violence Effective

Effective court-connected programs must screen cases of juvenile domestic violence to identify disputes suitable for mediation, establish guidelines for the mediation process, and develop training requirements for juvenile domestic violence mediators. [42] The Franklin County Court Mediation Program is an example of a court-connected program that uses these tactics to structure a successful mediation alternative to traditional litigation.

A. It is Important to Implement a Screening Process to Assess the Suitability of Mediation for Juvenile Domestic Violence on a Case by Case Basis. [43]

In determining the appropriateness of mediation for juvenile domestic violence cases, screeners should consider (i) whether there is an unequal dynamic of control between the parties, (ii) whether adult violence is present within the family, and (iii) whether the youth has a criminal history. These factors change the dynamic of the mediation and expand the scope of the issues beyond that which the mediator and the process are prepared to handle. The Franklin County Court Mediation Program utilizes many of these screening procedures to determine which juvenile domestic violence cases are appropriate for mediation. Screeners of juvenile domestic violence cases should remember that the cases most suitable for mediation involve transitional or situational problems affect the youth and his or her parents.

(i) Screening cases for unequal control between the parties, adult violence within the family, and the presence of a juvenile criminal record

Mediation is inappropriate when the perpetrator uses intimidation tactics to control and coerce the victim because the victim cannot negotiate autonomously. [44] This type of struggle for power and control occurs more frequently in marital domestic violence situations than juvenile domestic violence situations, but it can be present in any domestic violence situation. [45] Because coercion poses a threat to mediation, screeners do not refer cases in which juveniles use control tactics to mediation. [46]

Additionally, if the mediator discovers a pattern of adult-perpetrated domestic violence in the family although the juvenile is charged as the perpetrator in the instant case, mediation is generally not suitable. [47] When mediators learn that juvenile offenders have experienced a cycle of child abuse, the child is not the only source of the problem, which broadens the scope of the conflict. In such situations, mediation is not appropriate because a process tailored to deal with juvenile violence cannot effectively expand to handle the problem of the adult's violence as well. [48]

Finally, screeners should consider the juvenile's criminal history in determining the appropriateness of mediation. Mediation is not appropriate for juvenile domestic violence cases that involve patterns of criminal conduct; rather, the process is more suited to situational problems that resulted in violence. Mediation is not designed "to modify chronic behavior" or reconstruct personality patterns, rather, mediation is helpful to assuage family problems that are "situational or transitional in nature." [49]

(ii) The Franklin County Court Mediation Program is a Court-Connected Program with Effective Screening Procedures

The Franklin Country Court Mediation Program employs screening procedures in the pre-mediation stage in order to fulfill the policy goals of all of the entities collaborating on the project. [50] The prosecutor, the defense attorney, and a Court mediator screen all cases to determine which ones are suitable for mediation. [51] Screening should continue throughout the mediation process, but the most crucial time to exclude cases not suitable for mediation is in the pre-mediation stage. [52]

At the Franklin County Mediation Program, a prosecutor does the first screening and considers the seriousness of the offense and the juvenile's prior criminal record in determining whether mediation is appropriate. [53] The program limits participation to youth with no prior contact or very little contact with the criminal court. [54] After the prosecutor's screening, the juvenile's defense attorney must approve mediation as a method of resolving the dispute.

Following the prosecutor's and defense attorney's recommendations, a Court mediator meets with the parent or parents privately to describe the mediation process. [55] During this meeting, the mediator listens to the parents' concerns and obtains information about parents' preferences for services and programs. The mediator will send the case to mediation only if the parent is amenable to mediation, willing to participate in the process, and allows the child to be released from the detention center. [56] Once the mediator determines that the parent supports the mediation process, the same mediator meets with the juvenile privately. The mediator must determine if the child will voluntarily participate in the mediation, and whether mediation is a safe and suitable method for resolving the dispute. [57]

(iii) Mediation is Most Beneficial for Juvenile Domestic Violence Cases that Result from Situational or Transitional Problems

When screening juvenile domestic violence cases for mediation, it is important to keep in mind the types of cases that are most conducive to mediation. Many juvenile domestic violence disputes that benefit from mediation involve families that have recently experienced significant life changes. [58] Participants in the Franklin County Court Mediation Program often assert that there have been substantial changes, including a move, divorce, death or illness of a family member, financial problems, or a parents' new spouse entering the picture, which occurred prior to the incident. [59] Many victims in the program allege that the youth is "basically a ‘good kid'" who experienced "mental health, substance abuse, school, social, family or discipline problems in the months prior to the arrest." [60]

Juvenile domestic violence mediation can effectively addresses situational problems that lead to conflict by identifying the transitions that were difficult for family members. [61] It is much more difficult for the process to address complex issues underlying a juvenile's long term history of violent behavior. Therefore, the process is most effective when the conflict stems from specific transitional problems within the family.

B. Structuring Mediation Helps Mediators Improve the Quality and Consistency of Juvenile Domestic Violence Mediation.

Although a hallmark of mediation is a less-structured, informal process that the parties control, [62] juvenile domestic violence mediation requires procedural guidelines to help mediators and parties focus on productive negotiation mechanisms. It is still the parties that generate resolutions, but guidelines enable the mediator to direct parties toward a discussion of forward-looking problem-solving methods. [63] Mediators should strive to (i) gain access into the family, (ii) help the parties focus on a plan for safe conflict-resolution, and (iii) ask forward-looking questions to develop conflict-reducing strategies for the future.

(i) Mediators of Juvenile Domestic Violence Cases Should Gain Access into the Family to Empower Family Members and Facilitate Negotiation

When families participate in mediation, as in the juvenile domestic violence situation, it is important for the mediator to gain access into the family dynamic. John M. Haynes, a mediator experienced in parent-teen conflict issues, claims that many families have a member who acts as a "gatekeeper" between the family and outsiders. [64] Haynes asserts that the gatekeeper interacts with people outside of the family regarding family issues, and the gatekeeper is often the mother. [65] The mediator should ask open questions to the family to see who responds and thereby identify the person who functions as the gatekeeper. In the initial phase of the mediation, the mediator will speak mostly to the gatekeeper in order to gain admission into the family. [66]

Once the mediator has gained access to the family members, it is important to recognize that many family members feel powerless in a parent-teen conflict situation. [67] The parents believe they are powerless to manage the teenager, and their concern that the juvenile's conduct will escalate increases their feeling of powerlessness. The teen believes he or she is powerless in communicating and interacting with the parents. [68] The mediator can help this situation by working to empower family members individually regarding specific issues. [69] The mediator should watch to see where the parents and juveniles feel powerless and where they feel powerful in order to empower all parties in productive areas and decrease the tendency toward unproductive conflict. [70]

(ii) The Franklin County Court Mediation Program's Guidelines Focus Attention on Plans for Safe Conflict Resolution in the Future

Mediators in the Franklin County Court mediation program highlight important topics for juvenile domestic violence cases as guidelines to focus the mediation and look to the future. These topics direct the discussion to important issues and are part of the structure that drives the success of the program. [71] These mediators ask participants to speak to four issues in addition to the matters they bring to mediation, (i) a safety plan, (ii) guidelines for future parent child contact, (iii), development of an anger management plan for the juvenile, and (iv) exploration of resources. [72] The safety plan aims to protect all family members from physical harm and designates acceptable and unacceptable behaviors that the parties agree to during mediation. [73] Guidelines for future parent child contact include house rules and behavioral parameters that the parties can discuss in mediation and commit to writing as a document to reference during an argument. [74] In terms of an anger management plan, family members can discuss strategies in mediation that they will use when a member of the family becomes angry. [75] Exploration of resources entails a discussion of ongoing participation in counseling, domestic violence programs, and programs specifically for the juvenile. [76]

(iii) Forward-Looking Questions in Mediation are Important for Developing Conflict-Reducing Strategies

Mediators should ask forward-looking questions during the mediation to encourage parents and juveniles to develop workable resolutions for potential conflict situations. [77] Once the mediator has gleaned information about the incident from the parents and the juvenile and has given the parties an opportunity to discuss issues they wish to bring up, the mediator should ask the juvenile questions about future situations. A forward-looking question might be "If you could move forward a year, and it could be the way you wanted it to be, what would life be like?" [78] In this way the mediator asks the youth to examine and discuss a positive view of the future that is different from what he or she visualized upon entering the mediation. [79] This type of question compels the juvenile to focus on what he or she wants and likes as opposed to what he or she does not want or does not like. [80] The mediator should help parties "develop a future that is different from the future they brought to the mediation," which was rooted in their definition of the problem.

C. Training and experience requirements for juvenile domestic violence mediators can improve mediators' readiness to handle cases of juvenile family violence. [81]

Court-connected mediation programs should consider the qualifications, experience, and training of the mediators who mediate juvenile domestic violence cases. [82] In general, state regulations for general mediator qualifications are a controversial issue because it is unclear whether qualification requirements will improve the quality of mediation. [83] Benefits of specific qualifications are clearer in the case of domestic violence. Domestic violence mediation involves special attention to sensitive family relationships and assessment of the effects of violence on the victim. [84]

Continuing education regarding the issues that surround juvenile domestic violence is important to effective mediation. [85] Studies show that specialized domestic violence mediation training increases awareness of the complexities of family violence and improves handling of cases. [86] The special needs of domestic violence victims and the complex nature of violent relationships require sophisticated, trained mediators. [87] Therefore, court-connected mediation programs should implement training requirements for juvenile domestic violence mediators in order to provide parties with knowledgeable, experienced mediators. [88]

VI. State Rules Restricting All Domestic Violence Mediation Inhibit the Benefits of Mediation for Juvenile-Perpetrated Domestic Violence

Recently amended Rule 16 of the Rules of Superintendence for the Courts of Ohio [89] governs mediation and embodies the debate of whether or not mediation is appropriate for juvenile domestic violence cases. Rule 16 designates specific provisions that local mediation rules must include and enforce. One interpretation of Ohio's Rule 16 is that it heightens restrictions on mediation of all domestic violence cases. [90] Rule 16(B)(1)(d) provides that local mediation rules must include "[p]rocedures for prohibiting the use of mediation . . . [a]s an alternative to the prosecution or adjudication of domestic violence." [91] The rule also provides that mediation programs shall implement "[p]rocedures for encouraging appropriate referrals to legal counsel and other support services for all parties, including victims of and suspected victims of domestic violence." [92] A strict reading of Rule 16 precludes mediation as an alternative to courtroom adjudication for all domestic violence cases. [93]

Rule 16(B)'s apparent prohibition of mediation as an alternative to the adjudication of domestic violence cases does not except juvenile-perpetrated domestic violence from the rule. As a result, some mediation programs interpret the provision as restricting their ability to submit juvenile domestic violence cases to mediation. Therefore, some mediation programs are seeking a change in Rule 16 to specifically exclude juvenile domestic violence cases that are not screened out of the programs. [94]

A less strict reading of Rule 16 permits mediation of disputes involving domestic violence if the process and the parties meet certain criteria and the mediators have specialized training. Rule 16 includes provisions that allow mediation to proceed when domestic violence is present provided that the mediation satisfies the procedural conditions specified in 16(B)(2) and the mediator has the necessary experience. [95] Rule 16(B)(2) requires that the mediation program inform the victim orally and in writing about the process of mediation, his or her right to decline participation, and the option to bring a support person to the mediation sessions. [96] The rule also mandates that parties have the ability to mediate free from coercion, that the program employs safety procedures, and that the mediator can terminate the mediation if there is a continued threat of domestic violence. [97] The Rule establishes the universal concern that parties have the capability to negotiate freely and without coercion. Rule 16 also requires procedures for documenting the aspects of the case that make it appropriate for mediation. [98] In addition to fulfilling the requirements in Rule 16(B)(2), the mediator must have specialized training to ensure that mediators of domestic violence cases have the appropriate qualifications.

It would be unnecessary for Rule 16 to supply these procedural requirements if the drafters intended to prohibit mediation of all domestic violence cases. Furthermore, Rule 16(C)(1) specifically establishes training requirements for mediators employed to mediate juvenile-perpetrated domestic violence cases. [99] The drafters would not set forth specific requirements for mediators of juvenile-perpetrated domestic violence cases if they did not anticipate mediation of these disputes. Rules requiring court-connected mediation programs to implement procedural safeguards and training obligations help increase the effectiveness and security of domestic relations mediation. These precautions are important for juvenile domestic violence mediation and should not be construed as prohibiting mediation of these cases.

Rule 16's provisions regulating domestic violence mediation are ambiguous in the context of juvenile perpetrated violence, [100] but the extensive training requirements for domestic violence mediators weigh in favor of permitting mediation when appropriate. Rule 16's specific requirements for mediators of juvenile-perpetrated domestic violence indicate that these cases might be especially conducive to mediation. Additional training requirements should signal the importance of qualified mediators to manage juvenile domestic violence cases, rather than a prohibition of mediation for such cases.

VII. Conclusion

Court-connected juvenile domestic violence programs can help parties develop conflict-reducing strategies and establish problem-solving mechanisms unavailable in litigation. Because juvenile-perpetrated domestic violence typically lacks the unequal control and pattern of abuse present in partner domestic violence situations, the risk of coercion in mediation is less, and the potential benefits of mediation are great. Screening methods help to select cases for mediation on a case by case basis, and procedural guidelines provide a safe, structured process focused on forward-looking resolutions. Furthermore, mediators should fulfill specific training requirements to provide parties with the skills necessary to manage juvenile domestic violence disputes.

State rules regulating mediation of domestic violence embody the debate of whether or not mediation is an effective method of resolving juvenile domestic violence cases. These rules should except juvenile-perpetrated domestic violence disputes from the sphere of cases not suitable for mediation. Finally, court-connected mediation programs must not construe state rules that implement conditions for domestic violence mediation as prohibiting mediation of juvenile domestic violence when it is appropriate.

[1] Andre R. Imbrogno, Using ADR to Address Issues of Public Concern: Can ADR become an Instrument for Social Oppression?, 14 Ohio St. J. on Disp. Resol. 855, 860 (1999).

[2] See Rene L. Rimelspach, Mediating Family Disputes in a World with Domestic Violence: How To Devise a Safe and Effective Court-Connected Mediation Program, 17 Ohio St. J. on Disp. Resol. 95, 104-108 (2001).

[3] A Mediation Program for Youth Charged with Domestic Violence Offenses, The Franklin County, Ohio, Juvenile Court Mediation Services, program description provided by Professor Marya Kolman (March 26, 2007).

[4] See Rules of Superintendence for the Courts of Ohio, Sup. R. 16, available at http://www.sconet.state.oh.us/Rules/superintendence/#rule16 (last visited April 21, 2007).

[5] Joanne Fuller and Rose Mary Lyons, Mediation Guidelines, 33 Willamette L. Rev. 905, 910 (Fall 1997) (stating that this approach views mediation as a forum for personal growth as participants learn methods to work out their differences during conflict).

[6] Rimelspach, supra note 2, at 107.

[7] Fuller and Lyons, supra note 5, at 909-910.

[8] Holly Joyce, Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial Law 447, 455-456 (1997).

[9] Id.

[10] Id.

[11] See Rimelspach, supra note 2, at 102. The author states that the adversarial nature of litigation "escalates the conflict, encourages scapegoating and victim behaviors, and reinforces just those factors that contribute to abuse in the first place." Id.

[12] Id. at 103; See Edward Brunet, Charles B. Craver & Ellen E. Deason, Alternative Dispute Resolution: The Advocate's Perspective, Cases and Materials 202 (3rd ed., LexisNexis 2006) (stating that "[t]he central quality of mediation . . . [is] its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship. . .").

[13] Fuller and Lyons, supra note 5, at 910.

[14] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[15] Id.

[16] Rimelspach, supra note 2, at 102.

[17] Fuller and Lyons, supra note 5, at 910.

[18] Joyce, supra note 8, at 451-452.

[19] Id. at 452 (stating that "batterers . . . want to ‘scare their partners into obeying . . .'") (emphasis added).

[20] Id. at 451-452.

[21] See Rimelspach, supra note 2, at 98; See Joyce, supra note 8, at 452 (stating that "[w]hen a victim is forced into mediation, her fear of her abuser may prevent her from asserting her needs").

[22] Rimelspach, supra note 2, at 96-97.

[23] Joyce, supra note 8, at 452.

[24] Id.

[25] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[26] Id.

[27] E-mail from Crevon Tarrance, Program Manager for the Ohio Supreme Court Dispute Resolution Section, to Marya Kolman, Adjunct Professor, The Moritz College of Law at The Ohio State University (December 21, 2006) (on file with author).

[28] See Joyce, supra note 8, at 452.

[29] E-mail from Crevon Tarrance, supra note 27.

[30] See Joyce, supra note 8, at 452.

[31] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[32] Glenda L. Cottam, Mediation and Young People: A Look at How Far We've Come, 29 Creighton L. Rev. 1517, 1536 (1996).

[33] Cottam, supra note 32, at 1517.

[34] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[35] Id.

[36] Id.

[37] Id.

[38] See Id; Ninety percent (90%) of the mediated cases reached full agreement. Both parents and youth report satisfaction with the program . . . [T]he staff mediators, who . . . review the Court domestic violence dockets daily, report that very few youth who complete the program return to Court on domestic violence charges while youth who either did not participate in the program or did not complete the program return to Court on violence charges at a higher rate. Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[39] E-mail from Crevon Tarrance, supra note 27.

[40] Cottam, supra note 32, at 1527.

[41] See Id.

[42] See Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[43] Rimelspach, supra note 2, at 104 (stating that "[b]ecause many families, including those that have experienced violence, can be better served by the mediation process, one of the most important responsibilities for a court-connected program is to establish adequate screening mechanisms").

[44] Joyce, supra note 8, at 451-452.

[45] See Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[46] Id. (stating that "[m]ediation would not be appropriate in the rare cases in which the juvenile aggressor does exert such intimidation and control over the victim").

[47] Id.

[48] See Id.

[49] Cottam, supra note 32, at 1526.

[50] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[51] Id.

[52] See Rimelspach, supra note 2, at 104-105.

[53] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[54] Id.

[55] Id.

[56] Id.

[57] Id. The Franklin County Court mediation program acknowledges that mediators must recognize that juveniles will agree to virtually anything that will permit their release from the detention center.

[58] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[59] Id.

[60] Id.

[61] See Cottam, supra note 32, 1526

[62] Brunet, Craver & Deason, supra note 16, at 199 (stating that "[i]n mediation the parties control the proceedings").

[63] See Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[64] John Michael Haynes, Gretchen L. Haynes & Larry Sun Fong, Mediation: Positive Conflict Management 129 (2004).

[65] Id. 129.

[66] Id.

[67] Id. at 130.

[68] Id. at 130 (stating that teens often feel that the "parents have all of the power and [the teens] see themselves as powerless pawns").

[69] Id.

[70] Haynes, supra note 70, at 130. The author claims that if a mediation turns into a cycle of bickering between the parents and youth, the mediator can ask questions about specific data pertaining to the situation. Id. at 135. Questions targeting specific information draw the party's attention away from bickering and toward the data. Id. Such questions also give the mediator a context into which to place the problem in the negotiation. Id. Conversations about the problem are more conducive to movement than bickering, which is a result of the problem.

[71] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[72] Id.

[73] Id.

[74] Id.

[75] Id. (stating that the parents and juvenile can decide ahead of time where the juvenile will go to 'cool down' when he or she is angry). Additionally, parties and youths can "give each other permission to take a 'time-out' from heated discussions with the goal of defusing anger before any family member becomes violent." Id.

[76] Franklin County Mediation Program for Youth Charged with Domestic Violence Offenses, program description, supra note 3.

[77] Id.

[78] Haynes, supra note 70, at 135.

[79] Id.

[80] Haynes, supra note 70, at 135 (stating that because it is difficult for participants to relinquish their complaints, discussing the future encourages them to concentrate on new options they had not previously considered).

[81] See Rimelspach, supra note 2, at 107

[82] Id. (stating that ‘mediation training must provide the information and the skills needed so that the mediators can serve as competent and sensitive assessors of the presence of domestic violence with knowledge of the effects of domestic violence on the victim').

[83] Brunet, Craver & Deason, supra note 16, at 367-368 (stating that "[T]here is little agreement on the extent and nature of qualifications that should be required to mediate. . . Meaningful measurement of mediator competency is difficult").

[84] Rimelspach, supra note 2, at 107.

[85] See Id.

[86] Id.

[87] Jane C. Murphy & Robert Rubinson, Domestic Violence and Mediation: Responding to the Challenges of Crafting Effective Screens, 39 Fam L.Q. 53, 57 (Spring 2005).

[88] See Rules of Superintendence for the Courts of Ohio, Sup. R. 16, available at http://www.sconet.state.oh.us/Rules/superintendence/#rule16 for examples of qualifications and training requirements of domestic violence mediators discussed below.

[89] Rules of Superintendence for the Courts of Ohio, Sup. R. 16, available at http://www.sconet.state.oh.us/Rules/superintendence/#rule16 [hereinafter Sup. R. 16]; The Supreme Court of Ohio Dispute Resolution Section website available at http://www.sconet.state.oh.us/dispute_resolution/default.asp (last visited April 21, 2007) (stating that on August 8, 2006 the Supreme Court adopted revised Rule 16 which became effective on January 1, 2007); Letter from The Supreme Court of Ohio, Office of Judicial and Court Services regarding the revised Rule 16, available at http://www.sconet.state.oh.us/dispute_resolution/rule16/letter.pdf (last visited April 21, 2007).

[90] See Sup. R. 16.

[91] Sup. R. 16(B)(1)(d)(1).

[92] Sup. R. 16(B)(1)(c).

[93] E-mail from Crevon Tarrance, supra note 27.

[94] Id.

[95] Rule 16(B)(2) states that

The [local] mediation rule shall include provisions that allow mediation to proceed, when violence or fear of violence is alleged, suspected, or present, only if the mediator has specialized training set forth in division [16](C)(2) of this rule and all of the following conditions are satisfied:
(a) The person who is or may be the victim of domestic violence is fully informed, both orally and in writing, about the mediation process, his or her right to decline participation in the mediation process, and his or her option to have a support person present at mediation sessions.
(b) The parties have the capacity to mediate without fear of coercion or control.
(c) Appropriate procedures are in place to provide for the safety of the person who is or may be the victim of domestic violence and all other persons present at the mediation.
(d) Procedures are in place for the mediator to terminate the mediation if he or she believes there is continued threat of domestic violence or coercion between the parties.
(e) Procedures are in place for issuing written findings of fact, as required by R.C. 3109.052, to refer to certain cases involving domestic violence to mediation. Sup R. 16(B)(2).

[96] Id.

[97] Id.

[98] Sup. R. 16(B)(2).

[99] These mediators must possess a bachelor's degree or comparable educational background and "at least two years of professional experience with families." Sup. R. 16(C)(1)(a). The Rule sets forth a requisite number of hours of mediation training as well as "specialized family or divorce mediation training" offered by a program approved by the Dispute Resolution Section. Sup. R. 16(C)(1)(b) and (c). Additionally, mediators working with domestic abuse cases must complete a certain number of hours of domestic abuse training through an approved program. Sup. R. 16(C)(2).

[100] Rule 16(B)(1)(d) fails to except juvenile domestic violence cases from its prohibition on mediation as an alternative to adjudication of domestic violence. Conversely, section 16(C)(1) gives detailed training requirements for mediators of juvenile-perpetrated domestic violence cases signaling that mediation can be appropriate. Sup. R. 16.