Once, when I participated in an online discussion about the limits of mediation, I shared what I had been taught in 1997, in the first mediation training I had attended: That when one spouse is unable to express him or herself after experiencing domestic violence, mediation is inappropriate.
The basis for this policy can be understood when we consider what happens during sessions and what is expected of the participants. Overwhelmingly, divorce mediation requires the spouses to be present and in the same room. To ultimately reach agreements, both need to provide information, and talk about what they want and need for themselves and their children. The parties work to create options that best suit their situations, and finally — though this is not quite the linear process it sounds like — decide together how to settle their issues.
Mediators are helpful at every step, and other professionals can also be involved, but it is the spouses themselves who have to have the capacity to speak their own minds and make their own decisions. Possible exceptions are for another article.
How can a spouse who has been abused express herself and make decisions without fear of violence? How can she even be in the same room with her husband? It’s important to keep in mind that in an abusive heterosexual relationship, it may be the husband who is the victim.
During the online discussion, it didn’t take long for my assertions to be challenged. One contributor, Naomi Holtring, Master of Dispute Resolution and Director of interMEDIATE Dispute Management in Australia, said that mediation may be appropriate even in situations where there has been abuse.
But first, she said, a thorough assessment needs to be completed, and the level of harm gauged.
“Then, the appropriateness of the mediation process can be considered,” she says
Holtring mentioned a case where the wife had been severely injured by the husband. Even so, she, the wife, was the one who wanted to mediate.
The wife wanted to tell her husband directly about the pain he had caused her. She wanted him to know, from her, about the financial expenses his abuse had made her incur, and the inconvenience and lost time from work.
Additionally, this spouse needed the money a settlement would bring very quickly to pay those costs, and more generally to move on with her life.
Holtring told us that the sessions had been conducted via phone — essentially through conference calls allowing the parties to speak with each other and the mediator, while physically being apart, providing a much greater sense of safety than would have been possible with everyone in the same room.
“After four hours of mediation they [the wife and husband] had discussed and agreed on parenting, property, and finance,” she says. “Our [follow-up] reviews show those agreements are holding up and they are each moving on with their separate lives.”
That online conversation made a big impression that has stayed with me. Many continue to believe that cases involving domestic violence are inappropriate for mediation. Period. But my own thinking has changed. Every couple is different. Those working with spouses may need to distinguish between one spouse slapping the other five years ago — any violence is inexcusable — without any violence afterwards, from ongoing and escalating abuse.
Mediation certainly is not a suitable process in every instance where there has been domestic violence; but neither should it be dismissed out of hand. Consider the alternative of going to court, which so often increases feelings of fear and anger as cases may drag on for years; it definitely has drawbacks.
During that online discussion I learned that, with the necessary safeguards in place, mediation just may be preferable to long, expensive, and antagonistic court proceedings.
New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to lc-mediate.com/. Follow him on Facebook at www.facebook.com/lchabin.
Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.
