This is a vexed question. When answering it, at the heart of every answer must be the concept of family safety, not just victim safety but also that of the children who are usually victims of the violence as well but may not have been named in any court documents as such.
If you are the proposed mediator, then suitability and safety considerations must come first and you should always be ready to reject a family as being unsuitable. This is why our court system exists; to make decisions for those who cannot avail themselves to other options and in fact would be put at risk in any other option other than court.
A precursor to Court is the ability to negotiate and do so via lawyers and without the necessity of parties coming together into the same space to negotiate. Again this is why the victims and perpetrators of violence need to have access to legal representation to ensure that legal advice is given and that unrealistic expectations are managed or domineering behaviours are managed by that same advice.
If considering suitability for a non-court based resolution process, as a professional working with the family, you should seriously explore all issues in addition to family violence such as:
- mental health issues,
- addiction,
- nature of violence,
- frequency of violence
- victims of violence – suitability of any process
- capacity to participate – victim (on going assessments to be made)
- supports for the victim
- wrap around services for victim, perpetrator and children
- counselling for all
- legal advice for victim and perpetrator
- appropriateness of mediation given the actions or alleged actions of the perpetrator if in dispute
If you are lawyer proposing mediation when acting for a given client, you should also consider safety for the whole family, not just consider the issue through the client lens.
Screening processes by mediators must occur at the outset and this requires separate intake meetings in respect of which a safety plan should be constructed. As most lawyers have no training in risk assessment tools, when I am working as a mediator, I conduct my own screening process and do not rely on the word of those referring a couple to me.
As lawyers, I frequently find that my clients are unaware that they are indeed victims of family violence and until I explain in some detail what constitutes family violence it is apparent that they were labouring under the misapprehension that family violence is exclusively physical violence. The more lethal behaviours are not confined to physical violence. Coercive controlling violence which is exerted by one person over another and over a period of time need not involve physical violence but is violence nonetheless.
Any screening process must be evident to the would be participants before any form of negotiation or mediation is suggested let alone takes place. Those working with families must be trained in knowing how to use and how to implement risk assessment tools. More importantly, once assessed, the professionals must know what to do with the information, not simply note its existence and then move onto the negotiation or mediation process.
To suggest a method of dispute resolution first and then worry about someone’s capacity to participate or the appropriateness of their participation is putting the cart before the horse. Clients should make enquiries of the professionals involved with their families in relation to their training and exposure to such issues before deciding to engage their services.
It should be noted that if you are the victim or perpetrator of family violence, then very specific safeguards and safety plans must be considered, discussed in detail with you and agreed to by you (if you are the victim) and the perpetrator well ahead of any attempt to negotiate or mediate.
A family that has experienced family violence is usually not suitable to participate in the Collaborative process. A great degree of trust must exist for Collaborative divorce to be of benefit to both parties. Both parties must respect each other and feel that they can participate fully in their settlement negotiations and be able to articulate their interests and preferred outcomes.
As stated, in any negotiation or mediation, the safety of the victim and the family as a whole must be the paramount consideration when shaping any process. Great care must be taken to ensure that the victim is not selecting a process for the benefit of the perpetrator or in the hope that the perpetrator will find a non-litigious means of dispute resolution more to their liking. Or they are choosing a process in the hope that the behaviour of the perpetrator can be better controlled. A victim has to understand what is expected of them in any process and not just the mechanical aspects of a given process. They have to know in advance what is required of them and their personal resources.
Only after attending to the creation of and agreement to safety plans and only after I had the opportunity to hear from those who have been working with the victim, would I contemplate what form of mediation would be suitable for a given couple. In situations where one party’s capacity to participate is diminished due to violence or due to the nature and extent of the violence, I might recommend that the parties consider a shuttle mediation. Effectively this means they need not be in the same space and theoretically could be in different geographical locations.
I am likely to recommend in more extreme cases (noting that it can add a layer of expense) that in such circumstances that a co mediator be involved and in opposite sex couples, I am likely to advocate for a similar make up in the co mediators. In the more extreme cases, I also prefer the clients’ lawyers attend the mediation sessions noting again this adds a layer of expense but ultimately compared with the costs of litigation, it is much less expensive. The lawyers can provide advice in real time and can corral their client’s unrealistic expectations. It also prevents a participant from trying to rely on the mythical advice received from the unicorn lawyer who does not exist. T
So there are different modalities for different families but not all families should unilaterally decide which method of negotiation or mediation suits them. After all, this is possibly their first divorce and whilst they have their personal history they may not have the requisite insights to understand their family violence dynamics and make appropriate choices without input.
Families who have experienced violence need vastly different considerations, strategies and assessment of risk (not just at the beginning but throughout any process in which they engage).
Caroline Counsel
Accredited Family Law Specialist
Family Dispute Resolution Practitioner
Collaborative Practitioner.
