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Exemption from Court Ordered Mediation for Victims

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Front Page / Issue Briefs / Children, Youth and Families / Exemption from Court Ordered Mediation for Victims

 

Issue Brief

 

Exemption from Court Ordered Mediation for Victims - Overview

 

 

Goal Statement   one sentence that further defines the topic 


  • To create guidelines in the state judicial system for the use of mediation, for child custody and visitation agreements, when the parties involved have a history of domestic violence.

 

Local/State/National Information    additional information on this topic at the local, state, national, global level


 

Policy Options / Model Programs   specific policies or program models, grouped by type, that are profiled 


 

Divorce, child custody, and visitation laws as well as mediation laws are established by each of the 50 states and so it is important for each state to adopt a policy that best fits their system when it concerns mediation for couples with a history of domestic violence.  Because each state has different laws on the books and different ways of handing family court cases and mediation regulations the changes required will differ from state to state.

 

In general these regulations need to have four basic aspects in them:

          1. Confidentiality – All information disclosed in the mediation process should be confidential unless both parties agree to the disclosure of the information.  “The mediator should not make recommendations to the court.” [1] Pg. 292 By preventing the mediator to make recommendations to the court when the parties fail to reach an agreement prevents mediator bias from influencing the court’s decision.  “All mediator work product, communications between the mediator and the parties, and communications between the parties during mediation, should be confidential and inadmissible as evidence in an action for dissolution of marriage and related proceedings on any issue in controversy in the dissolution.” [1] Pg. 292  

          2. Mediator Training – “The greatest criticism of using mediation to resolve cases involving domestic violence is the lack of trained mediators.  Most mediators cannot recognize the existence of domestic violence.” [2] Pg. 269  “If the mediator is not aware of a history of domestic violence or is not trained in the dynamics of domestic violence, it is not unlikely that inequality of bargaining power will be addressed.” [1] Pg.280 Each state should strive to train mediators to specifically handle cases involving couples with a history of domestic violence.  

          3. Safety – In every case involving domestic violence there are two overriding interests which should be guarded carefully- protecting the victim from further abuse and empowering the victim to take back control over her life.” [3] Pg.451"The most dangerous time for a battered woman is when she separates from her partner." [3] Pg. 452  “Mediators must recognize that victims are typically fearful of retribution by their battering spouses, thus, victims may not fully inform mediators of their situation or dodge certain questions asked of them.  Every disclosure of abuse, no matter how minute, should be carefully considered by the mediator.” [2] Pg. 276 “The mediator can customize the process to serve the best interests of parties.  For example, she can employ methods such as shuttle mediation or telephone conferences to keep the parties separated.” [3] Pg. 457

          4. Victims Choice – “The optimal mediation process is one that is voluntary.” [1] Pg.291 “Victims are obviously most familiar with their own situations; thus, they should be the ones to decide the form of the decision making process.” [2] Pg.273 By allowing the victim to choose whether or not to mediate the victim is empowered by the system to make this decision for themselves. 

 

Glossary of Terms   key words or phrases that the layperson needs to know to understand this issue 


  • Mediation is statutorily defined as "the intervention into a dispute by a third party who has no decision making authority and is impartial to the issues being discussed." [7]

  • Domestic violence is a pattern of coercive, controlling behavior that can include physical abuse, emotional or psychological abuse, sexual abuse or financial abuse (using money and financial tools to exert control). [4]

  • Power and Control Wheel - Graphic organizer used to show the tactics used by perpetrators to assert power and control over their victims. [5]

  • Perpetrators of domestic violence (batterers) use a combination of the following tactics to gain and maintain dominance, power, and control over the victim. Batterers choose the circumstances of their violence, including the amount of injury inflicted by their acts. Batterers bear sole responsibility for their actions. [6]

    • Physical violence: Pushing; grabbing; shoving; restraining; kicking; spitting; biting; pulling hair; pinching; hitting; punching; slapping; strangling (choking); cutting; stabbing

    • Sexual violence: Unwanted touching or fondling; forced sexual contact; rape; accusing her of being unfaithful; humiliating or objectifying her body; restricting her access to reproductive health care; forcing her to engage in unwanted sex acts; threatening to have sex with someone else; coercing her into having sex

    • Coercion and threats: Making or carrying out threats to do something to hurt her; threatening to leave her, to commit suicide, to report her to welfare, to have her deported or report her to immigration authorities; making her drop charges or not testify; making her do illegal things

      Intimidation: Making her afraid by using looks, actions, gestures; destroying her property; abusing pets; displaying weapons

    • Emotional abuse: Putting her down; calling her names; making her think she’s crazy; playing mind games; humiliating her; making her feel bad about herself; making her feel guilty

    • Isolation: Controlling what she does, who she sees and talks to, what she reads, where she goes; limiting her outside involvement; using jealousy to justify actions; withholding important documents (immigration paperwork, birth certificates, social security cards)

    • Using children: Making her feel guilty about the children; using the children to relay messages; using visitation to harass her; threatening to take the children away, to fight for custody, to harm the children; undermining her parenting; teaching the children to treat her with disrespect

    • Economic abuse: Preventing her from getting or keeping a job; making her ask for money; giving her an allowance; taking her money; not letting her know about or have access to family income

    • Male privilege/entitlement: Treating her like a servant; making all the big decisions; making all the rules; being the one to define men’s and women’s roles

    • Minimizing, denying, blaming: Making light of the abuse and not taking her concerns about it seriously; saying the abuse didn’t happen; shifting responsibility for abusive behavior; saying she caused the abuse; claiming to be the “real” victim

 

Bibliography    


[1]Gagnon, A.G. (1992). Ending mandatory divorce mediation for battered women. Harvard Women's Law Journal, 15(1), 272-294.

[2] Davis, A. (2006-2007). Mediating cases involving domestic violence: solution or setback?. Cardozo Journal of Conflict Resolution, 8(1), 253-281.

[3] Joyce, H. (1997). Mediation and domestic violence: a legislative responses. Journal of the American Academy of Matrimonial Lawyers, 14(2), 447-467.

[4] http://www.nnedv.org/resources/stats/faqaboutdv.html

[5] http://www.kcsdv.org/pandcwheel.pdf

[6] http://www.kcsdv.org/dv.pdf

[7] http://www.kslegislature.org/li/statute/005_000_0000_chapter/005_005_0000_article/005_005_0002_section/005_005_0002_k

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