Domestic Violence: Should You Consider Mediation?

By Aditi Mukherji, JD on October 10, 2013 | Last updated on March 21, 2019

Mediation is a form of alternative dispute resolution that is popular -- and often court-ordered -- in the child custody and divorce cases. However, for domestic violence victims, resolving a family law dispute with a former intimate partner through mediation can potentially yield unfair outcomes.

Here are a few concerns about family law mediation in the domestic violence context, and the protections that are in place to assist victims:

Imbalance of Power

The effectiveness of mediation relies on open communication. Mediation can therefore be especially tricky for domestic violence victims because they often feel intimidated, coerced, and silenced during the process, according to Court ADR.

In addition to safety and security concerns, domestic violence victims often agree to something because of the pressures of the situation. Even if no mediation agreement is reached, the process itself might be traumatic.

Ultimately, mediators who aren't trained to recognize abusive relationships or to counteract the power imbalance inherent in the parties' relationship often end up facilitating a one-sided mediation. Even worse, that one-sidedness can cause victims to be mistakenly perceived as being apathetic and uncooperative -- two cardinal sins of mediation.

Standard Protocol

When it comes to allowing domestic violence victims to participate in mediation, state laws vary widely, according to the American Bar Association. Many states have a flat-out ban on mediation when domestic violence is detected. Others allow mediation, but only with protective conditions. A number of states like Montana permit mediation if the doemstic violence victim selects it or under other specific circumstances.

Michigan is the first state to approve a domestic violence screening protocol. Many states have followed suit and now require mediators to undergo domestic violence mediation training to learn how to:

  • Identify a domestic violence victim,
  • Prevent a power imbalance,
  • Take safety precautions, and
  • Recognize when mediation isn't appropriate.

Given how state-specific the rules are, victims and their loved ones may want to contact an experienced family law attorney or domestic violence attorney to learn more about their local legal process on mediation in the "DV" context.

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