The issue of whether mediation is suitable for cases where any level of domestic violence is present has always been a fertile ground for debate. The extended definition of domestic violence in the revised Practice Direction (PD) 12J of the Family Proceedings Rules 2010 is likely to fuel that debate even further (see box).
Part 1 of this article examined the Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm, and considered the measures that might be set out in the proposed Domestic Violence and Abuse Bill before explaining how mediation can assist in certain cases of domestic violence (see (2017) November CILExJ pp20–21).
It is the responsibility of the mediator to identify which parties from abusive relationships can beneÿt from mediation, and those that need to be excluded ... and referred to other sources
It is generally overlooked that one of the purposes of the mediation information and assessment meeting (MIAM) is for the mediator to assess whether a case is suitable for mediation; therefore, screening for domestic violence is a concomitant part of the MIAM.
The MIAM should be conducted separately, and a competently trained mediator will ask appropriate questions of both parties to discover if there is, or has been, any form of abuse in the relationship. Often, the MIAM uncovers abuse even where the victim has not disclosed it, which is not uncommon as often victims minimise their abusive partner’s behaviour or blame themselves.
Ironically, if a therapeutic model is employed as part of the mediation process, some lower levels of abuse can sometimes be addressed with the abuser in order to modify and, hopefully in time, eradicate negative behaviour. Shouting, put-downs and name-calling are often prevalent post-separation behaviours. This is clearly ‘controlling’ or ‘coercive’ behaviour. Mediation can help the abuser learn to attack the problem rather than turn the problem into an attack on the other party. This is a particular problem in children disputes. By establishing clear, written ground rules in mediation, communication can sometimes be re-established or at least improved.
Once the author in his role as a mediator detects any element of abuse, the victim is asked to talk about the following:
Readers should note that any process must validate the victim and minimise the risk to them if mediation is to take place. Victims of domestic abuse should be assured that the MIAM is an effective pre-mediation process, which screens for domestic violence in order to determine if the level of any abuse detected makes the case suitable or unsuitable for mediation. Once a case is identified as suitable for mediation, the mediator must then use techniques to balance power.
Apart from shuttle and separate arrival and departure times, the mediator can create ground rules to restrict discussion topics and to preclude topics the abuser may want to negotiate (for example, meeting the victim on the handover of children, or persuading the victim to drop any criminal complaint or injunction proceedings).
It is the responsibility of the mediator to identify which parties from abusive relationships can benefit from mediation, and those that need to be excluded from mediation and referred to other sources. The mediator should be seen as the gateway of safety for victims of domestic abuse and violence.
The MIAM should establish the parties’ previous patterns of decision-making , fighting and how anger is expressed, as well as the history of abusive behaviours. The mediator then uses this information to assess the dimensions of power and control in the relationship.
Post the MIAM, cases should be assessed in one of three categories, which represent a continuum from non-abusive and non-controlling relationships with equal power on one end to severely abusive, controlling and potentially lethal relationships on the other end. Depending on how the couple has been assessed, one of three different approaches should be adopted.
Ground rules to which both parties must agree for mediation to be effective with such couples are as follows:
- acknowledgement of past abuse; - that the abused partner be encouraged to pursue an order for protection;
- a requirement for the abuser to attend, and for the monitoring of such attendance, at anger management classes or therapy; and
- a requirement for the abused partner to participate, and for the monitoring of such participation, in services for victims of domestic violence or therapy.
Provided the above protocol is followed and the mediator has a clear understanding about how domestic violence impacts on its victims, the MIAM is an effective screening process that will exclude serious cases of abuse, but also provide a safe negotiating environment where lower levels of abuse are detected.
A final word of advice: Do not dodge the MIAM; it is the friend of a victim of domestic abuse and harm, and their safety net.
* Available at: http://tinyurl.com/y9kql4uy
The old Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Violence and Harm has been substituted with the new Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm.¹
For the purposes of the Practice Direction:
… ‘domestic abuse’ includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged between 16 or over, who are or have been intimate partners or family members, regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse, and transnational marriage abandonment (para 3).