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:
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
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.