Three Ways Divorce Mediation Can Even The Playing Field: Part Two In A Conversation On Domestic Violence

She never saw the first punch coming, but after 10 years of marriage she expects them. The punches to her head, abdomen, legs, and the rest of her body are quick and painful, but they don’t hurt as much as seeing her 7 year old daughter’s face crumble as she watched Daddy hit Mommy. For Alice, it was her daughter’s face that finally brought her to our office.

The statistics are nothing short of terrifying; 75% of domestic violence victims -specifically women- are killed when they try to leave their abuser. So where does that leave victims who want to get a divorce? What options do they have?

Here are three ways that divorce mediation can be utilized in cases of domestic violence:

1. Find The Mediation Method That Best Suits You: Like most things in life, mediation is not a one size fits all. There are different styles and techniques of mediation and some will work better for you than others. Some mediators are “outcome driven.” This means that their primary focus is on helping the parties reach an agreement. As a result, many of these mediators often use the court system as the backdrop to their mediation session. For example, if you and your spouse are working through child custody issues, the mediator might interject and say, “Well, that would/would not happen in court” as a way of prodding the parties along to an agreement. On the other hand, some mediators focus on a more therapeutic mediation style, which focuses on the parties really hearing each other. In this way, mediation helps create a safe space for someone who has never felt safe to have these kinds of conversations by themselves.

2. Know Your Options: Many people who use mediation are at first unfamiliar with the process—don’t be one of those people. Understand that while a mediator is meant to be objective and impartial, you have a right to ask for a “caucus,” or in other words, to meet with the mediator alone for a few minutes. You can use that time to indicate to the mediator something that you are uncomfortable bringing up in the session by yourself.

Take Tom and Linda, for example. Tom, a 6’3” firefighter, spent the first forty-five minutes of the session sitting tight-lipped with tears streaming down his face. Linda, on the other hand, was pleasant and talkative as she explained what she thought would be the best custody arrangement for their two children. My co-mediator and I decided to meet with each party separately.

We first met with Linda. The minute Tom stepped out of the room, she turned to us and said, “This is the first time he’s been calm while we’ve discussed custody. I just don’t want to upset him.” As a trained mediator, you learn to listen for buzz-words– and there it was, “I just don’t want to upset him.”  That short sentence is often code for “I don’t want to set him off.” Eventually, Linda began describing Tom’s explosive tendencies, and it became clear that Linda was a victim of intense verbal abuse. She was hopeful that the mediation was working, and that Tom was hearing her for the first time, so she wanted to get the custody agreement down on paper. When we met with Tom separately, he expressed similar feelings.  He wanted to do what was right for his family—even if that meant finalizing a divorce he never wanted. We met with Tom and Linda for a few more sessions and were able to finalize a custody arrangement that worked best for their family.

3. Understand the Domestic Violence and Mediation Debate: While mediators constantly debate whether mediation is an appropriate platform for victims of domestic violence, courts in many states require mediation prior to a hearing in Family Court. The rationale behind court-mandated mediation is that mediation can help alleviate some of the conflict between parties when trying to decide on difficult issues, such as child custody. But again, mediation is not for everyone and it is certainly not for every case of domestic violence.

Domestic violence covers a wide array of various forms of abuse, such as physical, verbal and financial to name a few. While mediation might help someone who has been a victim of serious verbal abuse by finally providing them with a safe outlet to be heard without being bullied, it might not offer the same leverage for a victim of physical abuse. This is why as a mediator, it is important to be mindful of who suggests the mediation: is it the abuser? If so, then perhaps s/he is simply using mediation as another resource to control their partner. On the flip side, if it is the victim who wants the mediation, then perhaps s/he sees mediation as a safe platform to express some of their concerns. As a mediator, it is important not to completely deny a prior victim of abuse the opportunity to engage in mediation because that would just be another way of oppressing them.

Are there other ways that mediation can help victims of domestic violence? Discuss your ideas or experience in the comments.




About the Author
Born and raised in the big BK. Rachel is a young attorney trying to make sense of and change the world around her.