Mediation can be an effective means of dispute resolution during separation and divorce. The central elements of a fair mediation process include non-coercive negotiations. Rates of abuse in custody and visitation disputes however, are alarmingly high. In the context of domestic violence, mediation can be detrimental to victims of abuse, especially outcomes for children.
Research estimates that abuse is present in at least half of all custody and visitation disputes (Newmark, Harrell & Salem, 1994, Pearson, 1997) and as high as 80% when the definition of intimate partner abuse is expanded to include emotional abuse and coercive control (Beck, Walsh, Mechanic, & Taylor, 2010).
Systematic screening for family violence is a recommended practice in family law and some would argue an obligation to the extent they are able. It is without question an important first step.
Presuming effective screening has been completed and mediators are aware that precautions are indicated, what adjustments can be made to appropriately safeguard the mediation process and outcomes for families where domestic violence is an issue?
Several options exist for adaptations in mediation protocol. Some situations may require precautionary adaptations such as co-mediation, separate arrival/departure times, presence of security, presence of an advocate/support person in the waiting room or directly in the mediation room, shuttle mediation, video platform mediation or conducting a follow-up session to assess the need for a modification of the agreement.
There may be situations where imbalances between the parties and abuse are best addressed by delaying mediation until the likelihood that participants can negotiate safely and in their own best interest has increased. Interim interventions such as counselling, physical separation, substance abuse, or the retention of legal counsel, if not already represented, may be indicated.
There may be situations where mediation is not viable and introduces unnecessary risk to a participant. Situations such as current violence or threats, fear or intimidation, mental impairment, substance abuse and trauma-genic reactions would fall into this category.
Ongoing assessment during mediation is necessary as situations have the potential to change and the mediation process should adjust, pause or terminate as necessary.
Mental health professionals can assist in providing a comprehensive domestic violence screening and offer recommendations for adaptations that may be necessary provided they are specifically trained in family violence and coercive control in the family law context. These types of consultations do not determine presence or absence of domestic violence or provide evidence of same. They are however a tool that can be used to help mitigate risk to participants and increase the likelihood of positive outcomes for children in family mediation matters.
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