Court-Based Mediation of Cases Involving Parties with a History of Domestic Violence Abuse

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Court-Based Mediation of Cases Involving Parties
with a History of Domestic Violence Abuse
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Necessary Mediation Precursors

• Capacity
• Voluntariness

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Capacity

• Typically thought of as the ability of the party
  to discern the nature and reason for the
  dialogue.
• Generally comes into consideration in cases
  involving the mental health of the potential
  client, or in cases of intoxication or incapacity
  due to drug use or alcohol abuse.

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Voluntariness

• Mediation can never be forced while dialogue can
  be ordered to occur, the roots of mediation go
  beyond mere negotiation or mandatory settlement
  conference. Mediation involves facilitated
  dialogue for the sake of creating more effective
  dialogue. Parties cannot be forced to speak
  effectivelythat desire must emanate from the
  parties themselves.

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Probable Cases for Referral to Mediation

• Referred by judges in family court.
• A Judicial officer knowledgeable in the
  principles of mediation may have a greater
  propensity to refer parties to the process who
  have a protracted relationship over time, as
  well as those with a high probability of
  continued interaction (irrespective of any court
  orders to the contrary).
• Purpose of mediation is not to dialogue or
  negotiate about the domestic violence issue
  itself.
• Parties have other issues before the court,
  including temporary restraining order requests,
  custody or visitation issues, juvenile welfare,
  parenting plans, etc.

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Common Trends of Thought Amongst Mediators

• Mediation involving parties with a history of
  domestic abuse necessarily involves experienced
  mediators with advanced knowledge of domestic
  violence issues.
• Any court considering a mediation Program should
  begin with a discussion between all personnel
  likely to be involved in the mediation process.
  Topics discussed should include
• California Evidence Code as to mediator
  confidentiality ( 1119 et. seq.)
• Safety risks and issues.
• Screening for, identifying, and managing domestic
  violence, power, control, and intimidation issues
  amongst families.

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Current Discussion Issues

• Screeninghow much is needed, who does it, and
  what are we screening for? (Voluntariness)
• The mediators Hippocratic oath.
• Risks of violencewho knows better? (Capacity)
• Shuttle diplomacy or joint session?
• Power imbalanceis it a problem, and if so, whos
  problem is it?
• Success in mediationmonitoring the fairness
  or safety of a mediated agreement.
• Mediation neutrality as condoning perpetrators
  behavior.
• Confidentiality and the Tarasoff Issue What
  duties exist? What duties are perceived? (42 Fam.
  Ct. Rev. 641 )
• Does the forward orientation in the mediation
  process avoid a discussion of past sins?

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ScreeningHow

• Types of screening procedures may include
• Private, in-person screenings.
• Telephone screenings.
• Written questionnaires.
• Consultation with referring judges or family
  court coordinators/advocates.
• Checking with court records for prior or current
  restraining orders and criminal filings.
• On site (in hearing) screenings by judges.

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ScreeningWho

• Possible screeners include the following
• Court-connected family court services staff.
• Self Help Clinic staff.
• Family Law Facilitators Office staff.
• Other court staff.
• Private mediators when a private mediator panel
  is used.

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ScreeningWhat for?

• Voluntariness, Coercion, and Undue Influence

At a bare minimum, mediators need to be aware of
factors, cues, and communication techniques (both
verbal and non-verbal) between the parties
whereby one party may not be in a position to
elect (voluntarily) whether to participate in the
mediation or not, based upon the actions or
influence of the other party. The mediators
basis for safely determining the probable
(requisite) voluntariness of both parties is by
utilizing shuttle diplomacy and reality testing
techniques, and by spending a good deal of time
in convening.
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Parties Opting to Mediate Against the Opinion of
the Mediator
In screening and convening, a victim of domestic
violence abuse manifests the desire to
participate in mediation contrary to the opinion
of the mediatorWhats wrong with this picture?

• Mediators have an unwritten Hippocratic oath to
  do no harm to their clientsbeginning a mediation
  with a party in perceived harm violates this
  moral/ethical duty.
• On the other hand, by removing the prospect for
  mediation from a victim of domestic violence
  (even when motivated by the desire to be a
  vigilant vanguard for the victims safety), the
  mediator may be re-victimizing the victim by
  replicating the power dynamic of a domestic
  violence relationship in essence saying, You
  cant mediate, because I know whats good for you
  better than you do. You dont have the CAPACITY
  to make a decision VOLUNTARILY.

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Options

1. In California, the mediator may terminate the
   session (CA Evidence Code 1125).
2. The mediator may proceed under a shuttle
   diplomacy model.
3. The mediator may proceed in a joint session.

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Shuttle Diplomacy or Joint Session?

• Shuttle Diplomacy Model
• A mediation conducted solely through caucused
  session is inherently less effective in
  particular respects, than a joint session,
  because the parties dont receive the benefits of
  non-verbal communication, eye contact, trust
  creation, etc. However, if safety of the parties
  is an overarching concern, caucus may be the only
  tool available to allow the parties to have any
  type of facilitated dialogue.

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Joint Session Model

• If the immediate safety of a (victim) party (or
  the mediator) is not compromised by being in the
  same room with the second party (perpetrator),
  even if the mediator believes there may be
  adverse long term consequences with respect to
  the decision to mediate jointly, the individuals
  right to elect a course of action about whether
  to participate in mediation arguably should not
  be taken away. This is consistent with one of the
  principle tenets of mediationparty empowerment.

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Balance of Power

• A common misnomer is that a mediators role is to
  balance the power between participants. This
  perception is not only inaccurate, but impossible
  to change vis-à-vis many party dynamics (think
  parent youth mediation). Instead, the mediators
  role is to ensure that each party is heard and
  understood. When it becomes apparent to a
  mediator that one party is utilizing power over
  the other to some advantage or gain, the
  mediators role is not to prevent this
  occurrence, but rather, to utilize tools to make
  the party aware of the dynamic, and to reality
  test any decisions or agreements that are reached
  so that both parties can make absolutely informed
  decisions. At the end of the mediated session,
  the decisions must be theirs otherwise, nothing,
  including court orders, can prevent the parties
  from engaging in desired behavior.

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Success Fairness

• FAIRNESSIn the context of a mediation with
  parties involved in abusive relationships, the
  mediators desire to balance power may lead the
  mediator to interject his/her opinion as to
  whether the terms of an agreement are appropriate
  or fairthis leads to a loss of impartiality.
  Invariably, a mediator with this desire will
  begin to push and guide the parties either into,
  or away from the agreements they would be
  inclined to reach of their own accord.
• SUCCESSMediators dont define successful
  mediation sessionsthe parties doMoreover,
  success is not necessarily tied to reaching
  agreement in the outcome. The achievement of
  party objectives, and the parties satisfaction
  are the only relevant factors of success.

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Mediator Neutrality Does it Implicitly Condone
Violence?

• Some mediators believe that use of neutral
  language in the mediation of DV cases, e.g., not
  referring to parties as victim or perpetrator but
  rather, the other party, may go too far in
  conveying an implicit message of acceptance
  regarding the presence of abuse. While there is
  some possibility that in failing to convey
  judgment towards the perpetrator, the victim may
  feel increased sensitivity or emotion about the
  mediators validation of both sides
  perspectives. Nonetheless, the alternative,
  whereby a mediator does somehow admonish the
  behavior, will absolutely result in the loss of
  good faith participation by the (perpetrating)
  party.

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Confidentiality and Tarasoff

• While many mediators have argued (see e.g. 42
  Fam. Ct. Rev. 641) in favor of extending the
  duties of the Tarasoff case to mediators,
  ultimately requiring the mediator to breach
  mediation confidentiality in cases of threatened
  or perceived imminent harm to another, current
  California law does not legally allow for such
  revelations.
• The California Evidence Code currently stipulates
  that mediation in civil matters shall be
  protected from discovery, leaving the door open
  to the possibility of a mediator being subpoenaed
  as a witness in a criminal matter. The
  requirement to answer a lawfully served subpoena,
  however, does not create an exception, as many
  mediators would like to believe, for issues such
  as proactively reporting child or elder abuse, or
  threats of imminent danger against others.

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Discussion of Past Sins

• While the mediation process is deliberately
  forward looking, a purging of past events from
  the perspective of each party is an essential
  element of the process. Without this cathartic
  discussion of past perceptions, parties will be
  unable to get beyond those hurtful and emotional
  encounters, and will be unable to brainstorm
  mutually agreeable solutions for their future
  relationship. Therefore, while the purpose of
  these purported mediations is not to mediate the
  domestic violence, mediators and court personnel
  should be aware that all manner of conversation
  may occur when the door is opened. Therefore,
  proper preparation and consideration of the
  salient issues, as well as conversation amongst
  all staff, is a necessary precursor to the
  undertaking of these cases.

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Questions