Mediation of Family Cases with a History of Domestic Violence

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MEDIATION OF FAMILY CASES WITH A HISTORY OF DOMESTIC VIOLENCE

Introduction

Thanks to the Tennessee Supreme Court’s adoption of Rule 31 which regulates the practice of mediation in court ordered cases, Tennessee has a robust pool of mediators who have been trained in how to actively screen for a history of intimate partner violence in family mediation cases, to design a safe process and continue to screen through the mediation, and how to make useful referrals for those cases when mediation is not appropriate. Family mediators in Knox County have access to a wonderful community of interlocking helping professionals and service providers, as well as educated and responsible law enforcement agencies, all of whom deal daily with the reality of domestic abuse. Mediators can rely on judges, the bar association, individual attorneys, and law professors, all of whom understand how mediation can be used, and who are willing to educate mediators about domestic violence. Importantly, Tennessee has the best kind of statutory underpinning addressing when and if family mediation can be useful in a case with a history of domestic violence. Beyond Knoxville, there is a supportive state-wide network of listed mediators and community mediation centers with a wealth of experience involving domestic violence screening and mediating. Beyond Tennessee, there are national and international mediation groups that provide model rules^[83], education and resources for mediators who are interested in learning more. This type of ongoing training is essential for mediators to keep on top of the interdisciplinary research, programs, and practical knowledge around the very important subject of helping couples and families affected by domestic violence as they go through separation, divorce, and co-parenting.

What is Mediation?

Simply put, [m]ediation is “an informal process where a mediator helps people with a dispute to reach agreement. The mediation process identifies important issues, clarifies misunderstandings, explores solutions, and negotiates settlement. The mediator is not a judge and does not make a decision or impose a solution on the dispute. Rather, the mediator helps those involved in the dispute talk to each other, thereby allowing them to resolve the dispute themselves. The mediator manages the mediation session and remains impartial.”^[84]

In Tennessee, the mediation profession does not require a license or a certification; anyone can hold themselves out as a mediator. However, in 1996 the Tennessee Supreme Court adopted Supreme Court Rule 31^[85] to regulate mediation required by law and/or ordered by the courts. There are criteria in the Rule applying to become a Rule 31 listed mediator^[86], as well as specific approved training required for listing. A mediator must take intensive training (40-46 hrs.) to become a General Civil Mediator (40 hrs.); a Family Mediator (46 hrs.); or if a Family Mediator, the mediator can be listed as “Specially Trained in Domestic Violence Issues”^[87]. The ADR Commission also approves the trainers and their individual training curricula, and in 2021, began allowing basic mediation training to be done synchronously using video technology.^[88]

A well-trained mediator always asks whether a particular case is appropriate for mediation. There are many reasons why one or both parties may not be good candidates for mediation. Some kinds of incapacities can be accommodated: For instance, there may be a language barrier or disability (such as hearing loss) requiring an interpreter. They may have problems reading or writing, and need assistance. They may be underage and not emancipated and need a legal guardian to accompany them. If they are proceeding pro se, they may need legal advice before or during mediation. If the party is elderly, they may have some degree of dementia and need an advocate. Some incapacities are harder to accommodate. The party could be overly emotional and unable to follow the mediation process without counsel. Or they may understand negotiation, but because of their disposition or the circumstances of the case, are unable to compromise. Substance abuse might affect their ability to fully participate.

Most Tennessee mediators agree with the following guidelines:^[89]

• Some cases with a history of domestic violence should not be mediated.
• Screening is necessary to determine which cases are appropriate.
• Family mediators should be required be trained in dynamics of domestic abuse, and in how to screen family cases.
• Any mediation must be safe to all participants, a fair and balanced process, where parties can voluntarily enter into agreements.
• Victims of abuse must not be required to mediate.

Tennessee Law

In Tennessee, are couples with a history of domestic violence required to mediate? If the divorce, post-divorce, separation, or annulment case has a history of intimate partner violence and is before a judge, the answer is “No, unless…” Tennessee law^[90] requires that a judge cannot order mediation to settle family divorce or separation disputes, unless three conditions are met. The victim or the alleged family violence must agree to the mediation process; the mediation is provided by a mediator who is trained in domestic and family violence in a specialized manner that protects the safety of the victim; and the victim is permitted to have a supporting person of the victim’s choice in the mediation. This kind of statute is “victim-protective” and approved by domestic violence advocacy groups because it requires that the victim “opt in” to mediation rather than a total bar to mediation, or a statute requiring mediation unless good cause is shown by the parties and approved by the judge.

If mediation is requested by the victim of domestic violence, the judge can order the mediation to be done by a Rule 31 family mediator with specialized training in domestic violence. The mediator will then screen the case to determine if the parties have capacity to give consent to the mediation, if the victim agrees voluntarily to mediate, and if the mediator believes the process can be done safely. There are pro bono and reduced fee options for mediation. If the case involves the mediation of a parenting plan, courts can use Tennessee Supreme Court Rule 38 to order a pro bono or “low bono” (reduced fee) mediation, taking into account each party’s ability to pay^[91], or use Community Mediation Center’s^[92] volunteer family mediation and screening programs.

Concerns About Mediation

Concern about mediating any case involving domestic violence goes back decades, to the early days in the 1970s and 1980s when awareness of domestic violence was growing through advocacy of victims’ rights as well as the criminalization of batterer behavior. At the same time, family mediation was becoming a profession with model rules and guidelines. Would allowing mediation soften the response to punish batterers? Would the process of mediation tend to treat both the victim and the perpetrator as “equals” sitting at the table together to discuss how to “move forward”? Victim advocates believed that even the possibility of mediation might imply that “victims share responsibility for the illegal conduct and [mediation would] them to modify their own behavior in exchange for the assailant’s promises not to commit further crimes.”^[93]

As a general proposition reflecting the strong value of self-determination running through Rule 31, a family listed mediator would consider it a success to be able to catch a case that was inappropriate for mediation before the mediation began. If the case is screened and found appropriate for mediation, the mediator would not facilitate discussions and compromise around the domestic violence itself, such as whether the act(s) of violence occurred, whose fault it was, whether the parties should reconcile, or whether one party will drop a protective order.

Table 1. Expressed concerns about the general safety and appropriateness of mediation when parties have a history of domestic violence, and responses to those concerns.

Concern	Response (Rule 31 and Tennessee Law)
The victim can't express herself fully, and because of undetected intimidation/coercion, mediation would result in involuntary agreement.	Mediators screen cases carefully, have a safety plan in place. Either party or mediator can terminate the mediation for any reason.
Victims without attorneys have to mediate alone.	By statute and practice, victims can bring an attorney into mediation and/or a domestic violence advocate to sit with her and watch for signs of fear and intimidation.
Mediators are inadequately trained and regulated.	Rule 31 provides proper oversight through the Supreme Court; attorneys and other professionals are also regulated by their professional ethics rules. Mediator training requirements are rigorous and trainers are approved by the Supreme Court's ADR Commission.
Mediators value settlement and will pressure parties to justify the usefulness of mediation.	Participation in mediation is voluntary. Mediators value a fair and balanced process and are forbidden to coerce settlement.
A calm, composed, even charming batterer and agreeable victim do not make a level playing field and indicate consent.  The battered woman is not free to choose, to elect or reject mediation and is not free to terminate mediation.	Careful screening of both parties, with questions about targeted behaviors, are the norm.  The victim can reject mediation or terminate mediation safely. Safe termination plan in place before the mediation begins.
Mediation requires trust, honesty, ability to communicate, ability to negotiate in good faith and compromise.  None of these qualities are found in couples with a history of domestic violence.	Different patterns can be differentiated in intimate partner violence by careful screening.  Mediator screens both parties carefully and looks/listens for coercive control-motivated violence patterns of behavior so as to screen out those cases.
Because of the confidentiality of the mediation process, no threat of harm or disclosure of harm can be reported out.	Mediators are mandatory reporters and are trained to terminate the mediation safely. Threat of harm is collateral to mediation itself and reporting of it can be an enforceable ground rule in the signed agreement to mediate. Mediators can terminate or not begin a mediation[94], and report it to the court that the mediation has become inappropriate.[95]
Mediation allows for secrecy and distortion, with no discovery under penalty of perjury.	Condition of honesty can be a ground rule in the agreement to mediate, as can making and signing a disclosure of assets under penalty of perjury.

Mediation Process

The mediator, the parties, and any other participants (co-mediators, attorneys, advocates) always sign an Agreement to Mediate (sometimes called the confidentiality agreement) after intake and screening but before beginning the mediation process itself. This is a contract which describes: the mediation process step by step; what mediation is and isn’t; what the mediator’s role is and isn’t; the confidentiality rules, including the confidentiality requirements of Rule 31; and what other ground rules will be followed by the participants. As indicated in the above table, a mediator will disclose that he or she is a mandatory reporter and will disclose previously unreported harm to children, vulnerable adults and the elderly. The mediator can require, and parties can agree, to other confidentiality rules, including reporting out threats of harm to persons, property, or threats of self-harm. This is called contractual confidentiality. If someone refuses to sign the Agreement to Mediate, then the mediation will not begin.

The purpose of the mediation when there is a history of domestic violence is to discuss common concerns such as:

• Co-parenting schedules for day-to-day and holidays; continued communication, if any; decision-making responsibility and process about children’s issues; child support, medical insurance, and other expenses related to children.
• Divorce proceedings
• Alimony and Division of marital property, or if not married, how to move out of a common residence and how to split up personal property.
• The mediator can facilitate the discussion with each party and their counsel in separate rooms or by telephone, text or video conferencing. The mediator can use a structured process of interest-based negotiation, and not allow positional bargaining, leveraging (trading this for that), or any tactic that indicates the all or nothing approach. In fact, one of the screening criteria for any mediation is for the parties to be willing to negotiate without making threats about what will happen if the other party doesn’t agree.
• When deciding on whether or not to mediate, mediators should consider the available alternatives for the parties. Depending on the circumstances, mediation may very well be a more user-friendly experience than litigation for a person who has experienced intimate partner violence (IPV). Would the victim fare better in court? Does the court have special expertise of domestic violence issues and outcomes? A well-trained mediator might provide more comprehensive screening, higher levels of attention and support, and more timely referrals to community resources, all of which could lead to a more appropriate intervention for the victim (especially an unrepresented one).
• If the victim requests mediation, the process can be a supportive, empowering one which can facilitate a victim being able to articulate opinions and make decisions, even after having her dignity and self-worth stripped away by past abusive behavior. The mediator is in control of the process. Strong mutual ground-rules can be put into the agreement to mediate and agreed to at the start of mediation by both parties. Creative solutions are encouraged in mediation, and parties can agree to bring in neutral experts. Parties can discuss practical aspects of their dispute, like what children need at each parent’s house to feel comfortable, how to pay off the car, when and how to communicate with the children, and other issues that a judge is unlikely or unable to address.

Screening for Domestic Violence

Much of the ability to mediate successfully depends on the intake and screening process. Mediators cannot safely assume that family cases have been screened for intimate partner violence (IPV) by anyone else, including the referral source or the parties’ attorneys.^[96] People may be reluctant to reveal interpersonal violence for many reasons, so mediators should strive to build trust and rapport with parties as early as possible. Accordingly, all prospective family mediation cases should be carefully screened for IPV prior to the first mediation session. A thorough intake process (private, pre-mediation meetings with each party) allows mediators to gather information about the case, explore red flags, communicate mediation ground-rules and expectations, determine what type of mediation model is appropriate for the situation, and, if necessary, customize a safety plan and/or process accommodations. During a pre-mediation intake meeting mediators can also demonstrate that they are respectful listeners who will protect the privacy of the parties and take their concerns seriously.

Mediators seek to identify factors that would impact a party’s capacity to mediate, self-determination, and/or safety. For example, have there been calls to the police, orders of protection, stalking, threats, or violence between the parties? What has triggered instances of escalation between them in the past? Has there been unreported abuse of children? Does one party wield leverage against the other one? Are parties able to be in the same room with each other? Has there been physical, emotional, sexual, or financial abuse? How were decisions made while they were in a relationship? Has one party engaged in a pattern of coercive control? How volatile are the emotions on each side? If violence has been present between the parties, how frequently has it occurred? How long has it been since the last violent incident? Were additional lethality indicators (e.g., head trauma, strangulation, use of weapons) present during any of these instances?

Mediators can choose to utilize screening tools that were specifically designed for the family mediation setting. The Domestic Violence Evaluation (DOVE)^[97], developed in 2006, screens for the presence of violence (both situational and involving coercive control). Based on the score, a case is assessed on a spectrum from “low” to “very high” risk. The level of risk indicates process accommodations that may be necessary for the safety of the parties. Mediator’s Assessment of Safety Issues and Concerns (MASIC)^[98] was developed in 2010 to judge the type, severity, and frequency of risk factors. MASIC looks for elements like fear, controlling behavior, use/abuse of alcohol or drugs, threats, stalking, and violence. This tool also examines elements like the presence of children, availability of weapons, whether the parties are still living together, mental health crises, new significant others, and recency of the separation. Regardless of whether mediators utilize formal screening tools or develop their own, mediators seek to maintain a conversational approach to the screening interview, asking open-ended questions to encourage the parties to share their experiences and concerns. Mediators go-to communication tools, such as active listening, acknowledging emotions, identifying interests, coaching, reality-checking, and clarifying what is said will all help bring out the information necessary to make the crucial process choices that come next.

Potential mediation process safeguards (safety planning) could include accommodations to the structure of the mediation process. For example, mediators might arrange separate arrivals to mediation. Mediators might decide that it isn’t appropriate for parties to participate in joint sessions and use a shuttle model instead. Mediators might build in an automatic delay or check-in with each party before any agreement is finalized. Keeping the length of mediation sessions shorter than usual (or taking regular breaks) can prevent parties from becoming overwhelmed or exhausted. Mediators could clearly establish safe termination procedures so that parties understand in advance what to expect if mediation is unsuccessful. Mediators could also increase the level of support for the parties as they go through the mediation process. The presence of an attorney, support person, interpreter, and/or domestic violence advocate can help to re-balance power. Mediators could develop signals and exit strategies with a vulnerable person so they can ask for help during a joint session if they begin to feel uncomfortable. Mediators could make referrals to community resources so that parties could seek out additional types of support prior to mediation. Safeguards related to the physical mediation space can also be crucial to safety. Mediators can utilize space with separate rooms, separate waiting areas, and even separate entrances. Mediators could conduct the mediation in a security-designed space with security staff present. Online mediation options might be preferable to having the parties come to the same physical building.

The need for careful, ongoing screening does not end with the initial intake meeting. A conflict is rarely static, and in the case of domestic violence, can be especially volatile at the time of separation and seeking legal counsel. Tensions and hostilities could have escalated since intake and initial screening. A party might have felt comfortable with the conversation in the abstract, but they find themselves unexpectedly triggered or falling into patterns of avoidance or accommodation. As people come together to share their stories, brainstorm ideas, and negotiate terms of agreement, mediators can observe different aspects of their personalities, their conflict behavior, and how they interact with each other. Mediators continue to screen for red flags as parties move through the steps of mediation itself, paying careful attention to changes in body language, tone of voice, and conversation dynamics throughout the mediation process. Are parties talking around things? Is a conversation happening that does not quite make sense? Are tensions escalating? Is one or both parties fixated on blame/shame? Are the parties following the mediation ground-rules, or at least responding appropriately when mediators enforce them? Is any party shutting down or unable to express their needs, goals, and ideas? Is one party proposing ideas that exert control over the personal life, relationships, employment, or housing of the other person? Is one party suddenly agreeing to things that threaten their own needs/interests? Is one party doing all the accommodating while the other keeps moving the goal-post? Is one party making a series of demands and ultimatums? Is one parent making comments like “well I guess I can do that if I have to” or giving other indications that they are feeling backed into a corner?

A Good Question to Ask

Should mediation be used in cases involving domestic abuse? A more useful question might be “Can we design a process that will empower individuals who have experienced IPV to take an active role in resolving their family disputes safely and privately?” If the answer is “no,” then there is a clear path forward through the legal system. If the answer is “maybe” or “yes,” we can use the tools and techniques discussed in this chapter to explore a wide variety of mediation and safety planning options.^[99] Mediators who want to take on these types of mediations should avail themselves of additional training, seek special listing, and consider working with experienced co-mediators as they learn how to manage the complex, sometimes intense dynamics of family disputes with IPV.

Domestic Violence Handbook 

With nearly 25 percent of women experiencing some form of abuse during their lifetimes, domestic violence is epidemic. Economic pressure increases stress on families and stress increases domestic violence. And, domestic violence affects all of us — at work, in health care and in the courts.  This Handbook is provided as a resource for attorneys, social service providers, but most importantly for victims and their family members.  

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If you have questions about issues discussed in this handbook, you should contact an attorney. The Knoxville Bar Association Lawyer Referral & Information Service (865‐522‐7501) can refer you to an attorney who handles the kind of legal problem you are experiencing. Other options are listed in the Local Legal Resource Guide at the back of the handbook. Domestic Violence: We Can Live Without It Rights & Options Available Under the Law.

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