Mandatory Mediation of Custody in the Face of Domestic Violence

Abstract

Mediation is frequently mandated as a first step for custody, visitation, and divorce cases. As a process that requires a balance of power between participants, mediation is not an appropriate method to resolve domestic violence disputes, a phenomenon that reflects profound disparities in power between the perpetrator and the victim. Of all marriages referred to court‐based divorce and custody/visitation mediation programs, 50% to 80% involve domestic violence. This raises very serious questions about mandatory mediation. This article considers the effects of domestic violence on the mediation process. It questions the use of mandatory mediation and suggests ways that mediators might recognize and respond to domestic violence.

Is Domestic Violence Relevant?

“…Approximately one third of the couples (32.9%) who were ordered by the court to attend mediation reported DV as an issue. This percentage is somewhat lower than the range reported by other studies in which 50% to 80% of couples in divorce and custody or visitation mediation programs reported an incidence of DV (Maxwell, 1999;Newmark et al, 1995;Pearson, 1997). It is not clear why there were fewer couples identified with DV in the current study.…”

“…Arguments against the use of mediation in cases of DV include issues of safety, fairness, effectiveness, power imbalance, and the decriminalization and privatization of DV (Imbrogno & Imbrogno, 2000;Maxwell, 1999;Pearson, 1997;Thoennes, Salem, & Pearson, 1995). Mediation advocates believe the same criticisms can be applied to the traditional adversarial court process.…”

“…The reported incidence of DV in divorce and custody or visitation mediation programs ranges from 50% to 80% (Cohen, 1991;Maxwell, 1999;Newmark et al, 1995;Pearson, 1997). The types of abuse include intimidation, physical abuse, and use of a weapon (Newmark et al, 1995).…”

“…lence (DV) is an issue (Hart, 1990;Maxwell, 1999;Newmark, Harrell, & Salem, 1995;Pearson, 1997). With DV, intimate partners attempt to control or manipulate behavior through physical, emotional, sexual, or economic abuse (American Bar Association Commission, 2000).…”

A Comprehensive Guide to Child Custody Evaluations: Mental Health and Legal Perspectives

“…Parkinson, 2000). Others have pointed out that mediation is not appropriate when there are great disparities in power between the parties, such as occurs with domestic violence (Maxwell, 1999). Kelly (1996) suggests that a close reading of the research suggests that whereas mediation is not appropriate for families with a history of classic, severe domestic violence, mediation is particularly beneficial for families with a history of infrequent, mutual, and less severe physical aggression (now usually called Common Couple Aggression; Zibbell, 2005).…”