How does domestic violence influence the likelihood of settlement in mediation? New data answers old questions

Abstract

This study seeks empirical evidence to answer critical questions surrounding domestic violence (DV) and mediation: Are survivors of DV being coerced into reaching unfair and unsafe agreements? Do all DV behaviors have the same impact on settlement? Does stalking predict impasse less than a history of physical violence? Do survivors feel safe in mediation compared to adjudication or attorney‐negotiated settlement? This study answers these critical questions in order to understand which cases are likely to benefit from mediation. This research empowers screeners, mediators, court employees and attorneys to better discern which cases are most likely to benefit from mediation.

Negotiating violence in family law mediation

“…Thus, he teaches mediators they need to differentiate between violence (read physical violence) and coercion and emphasizes in training the importance of assessing the level of coercive control present in the case. His emphasis on coercive control is warranted, as scholars have identified the importance of coercive control to case resolution (Raines and Indovina, 2020). At the same time, this emphasis has implications for the art of mediating cases with IPV, which we discuss in the next section.…”

“…A dominant question in this substantive area is whether mediating cases with IPV is beneficial or detrimental to the parties involved (Raines and Indovina, 2020). Our data cannot answer this question, as our focus in this research was on the mediators themselves and their understanding of IPV and coercive control in mediation and the strategies they use to manage it.…”

“…Despite the potentially problematic nature of mediation in cases with IPV, such cases are currently mediated in the USA and the question has changed to: “How can these divorces be mediated” safely? (Lanzetta, 2019, p. 330) and “Are survivors of domestic violence (DV) being coerced into reaching unfair and unsafe agreements?” (Raines and Indovina, 2020). In terms of the latter question, early on Kelly (2004) found ambiguous support for mediation of relationships with IPV; some parties were satisfied with their outcomes, while others felt that the mediators were inept, their process was not balanced or fair and they were unsatisfied or unhappy with their outcomes.…”

“…The researchers also identified that higher levels of female victimization increased the probability of their male abusers sharing legal custody (Rossi et al , 2015b), which could indicate the presence or outcome of coercive control in the mediations. More recently, Raines et al (2016) discovered that IPV in mediation reduces the settlement rate and that coercive controlling indicators such as verbal threats and fear of the other party were more problematic to settlement completion than physical violence (Raines and Indovina, 2020). Yet, there is also evidence that: “in cases with parents reporting concerning levels of IPV, when both parents are independently willing to mediate, mediation designed with strong safety protocols and carried out in a protected environment by well-trained staff may be an appropriate alternative to court” (Holtzworth-Munroe et al , 2020, p. 1).…”