Be Neutral
A Publication of the Georgia Office of Dispute Resolution

  
 


Theory to Practice: Mediating with Potentially Violent Parties

Mediators are seldom surprised when allegations of violence between the parties arise in domestic relations cases.  Yet these issues can crop up in cases where you least expect them:  in landlord-tenant disputes, probate matters, and even business conflicts.  What do you need to know in order to handle these cases appropriately, and as safely as possible? Here are a few ideas based both on research and practical experience (with some Georgia rules thrown in).

What are the Georgia rules for handling allegations of violence in mediation?

Georgia’s rules can be found here:

http://www.godr.org/files/DV%20Mediation%20Guidelines.pdf

It is important to remember that if allegations of domestic violence arise during mediation, you must terminate the mediation unless you have had the 14-hour specialized course and are registered in Specialized Domestic Violence.  The case can then be reassigned to a specially trained mediator, after screening has been done to determine whether or not mediation is appropriate.  The 14-hour Specialized Domestic Violence Mediation course covers safety planning, screening, and ways to determine when and if it is safe to proceed in mediation.  Any case where there is ongoing fear and coercion between the parties is not a good candidate for mediation (Chandler 1990).  This is true in any type of case, not just domestic relations.  Fear and coercion between the parties undermines the self-determination of the process and makes mediation unwise.  If either or both parties have histories of alcohol or drug addiction, the likelihood of serious violence increases, and the chances that they will abide by the agreements they reach in mediation decrease (Chandler 1990).

There was a spate of research on domestic violence (DV is now renamed, intimate partner violence, IPV) in the late 1980s and early 1990s, fueled by money from the Hewlett Foundation and a realization that many new court programs needed to know how to deal with these cases appropriately.  Some victims’ advocates argued against allowing any divorce cases to go to mediation since it would be hard to screen out all of the cases where violence had occurred, and any coercion could undermine self-determination.  Others argued that it was unfair to deny the mediation option to those who could benefit from it, whether or not their case involved allegations of violence (Girdner 1990).  The latter argument has generally prevailed, with some important safeguards put in place including the necessity of screening cases for violence ahead of mediation.

What can I learn from research on violence & mediation?

Q:  What cases should not go to mediation?

A:  Regardless of a court program director’s pre-screening of cases, as the mediator you get to make the call as to whether to terminate mediation once it has begun (as can the parties, of course).  Chandler and his team studied divorcing couples and found that settlement rates were reduced by half in those cases where there was “past violence, current fear, and an inability to communicate” (1990:341).  In other words, the most violence cases are unlikely to settle in mediation and may benefit more from direct judicial action.  While some have argued that bringing the parties together for mediation poses a risk, it is likely the same risk as occurs at their lawyers’ offices or in the courtroom.  Girdner’s research (1990) found that screening for violence results in the identification of three types of recommendations:  1) some cases should proceed as normal with mediation; 2) some cases should not go to mediation; and 3) some cases should proceed, but with special precautions taken in the process such as the increased use of caucus, additional screening within the session to assure self-determination, and special training for mediators who may need to help parties plan their safe exit from the session.

Q:  How can mediation be done safely?

A:  Some tips from experience:
 

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To de-escalate tensions within any type of mediation: 1) remind parties that no outcome will occur in mediatio without their approval.  A sense of powerlessness often sparks angry behavior.  2) Use caucus to listen deeply and let parties know that you have heard their concerns.  This will reduce their need to continue 'signaling' anger through hostile body language and raised voices.
   

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Never negotiate around issues of a Temporary Protective Order (TPO) or other similar instrument.  Only a judge can issue a TPO and only a judge can lift it.  If a party wants to get a TPO lifted, he or she can argue for it before the judge, not the mediator.  Be sure that any agreement the parties reach does not require them to violate the TPO (for example, do not allow an agreement for one party to pay rent in person to the other party).
   

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Be sure that all domestic and probate cases are pre-screened for violence - even in your private practice.  In the mediation session, use additional screening to determine whether there is ongoing fear or coercion and the parties are able to communicate without fear of "bad behavior."
   
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If the screening reveals past violence, but the decision is made to proceed with mediation, do so only in the courthouse - with the benefit of metal detectors and ambient law enforcement personnel.  (I once had a dad go to his car to get a pay stub and come back in with a gun ... hooray for metal detectors !)
   
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Remember that non-settlement is the RIGHT outcome in some of these cases.  Do not pressure the aprties to settle or negotiate terms that are not adequately protective of the children and victims.  The judge can order a psychiatric evaluation, drug tests and even limit visitation altogether - some of these cases need judges.
   
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Abusers often try to sweet-talk mediators and get them on their side.  When that does not work, they may switch to trying to coerce or threaten you.  They may tell you they will file a complaint if you terminate mediation, etc.  Remember, mediators are more likely to be found guilty of an ethics violation for continuing a mediation that should have been terminated than for terminating a mediation that could have continued.


It is also worth noting that cases in which there has been violence between the parties are likely to require specialized agreements that reduce future contact when possible and/or provide a third-party buffer or witness when future contact is unavoidable (Pagelow 1990).

Chandler, David. (1990). Violence, Fear, and Communication:  The Variable Impact of Domestic Violence on Mediation. Mediation Quarterly, 7, 331-346.

Girdner, K. Linda. (1990). Mediation Triage:  Screening for Spouse Abuse in Divorce Mediation. Mediation Quarterly, 7, 365-376.

Pagelow, D. Mildred. (1990). Effects of Domestic Violence on Children and Their Consequences for Custody and Visitation Agreements. Mediation Quarterly, 7, 347-363.
 













 

Susan S. Raines, Ph.D., mediates civil and domestic relations cases in most metro-Atlanta court programs in addition to training mediators and facilitating public policy decision-making processes.  She is the Director of the Master of Science in Conflict Management program at Kennesaw State University.  http://www.kennesaw.edu/pols/mscm/about/about_program.html