Open communication and cooperation underlie negotiating a marriage’s end. Consequently, divorce mediation appears untenable where domestic violence exists. Evidence of domestic violence, coercive conduct or threats, however, do not necessarily preclude a spousal agreement. This post explores navigating divorce mediation where domestic violence is a factor. The post outlines how to protect the victimized spouse during negotiations. Further, it examines circumstances in which domestic abuse situations frustrate successful divorce mediation.
DOMESTIC VIOLENCE DEFINED
Massachusetts law defines abuse between family or household members as causing physical harm. Causing one to fear imminent serious physical harm or making one have sex through force or coercion also constitutes abuse. See our post on domestic abuse and intimate partner violence .
Many states requiring mandatory divorce mediation also recognize a domestic abuse exception exempting battered spouses. Influencing states is the Model Code on Domestic and Family Violence (1994). The Code is produced by the National Council of Juvenile Family Court Judges. Section 407 of the Model Code urges mediators not to conduct divorce mediation when a participant alleges domestic violence. Exceptions to the rule include if the abuse victim requests mediation. Another exception is if the victim is accompanied by an attorney or advocate.
PROTECTING THE PARTIES
Divorce mediators principally must prioritize the safety of the negotiating spouses. To determine whether divorce mediation is viable, the mediator will confirm that any alleged incident of abuse is not current. Screening the parties, the mediator must gauge whether the alleged victim fears the other spouse. Also, whether the abused party is supported by an attorney or advocate and is capable of negotiating with the other spouse is a consideration.
If the mediator decides the parties are able to reach an agreement voluntarily, negotiations can proceed. Enhancing the safety of negotiations could involve conducting them at a courthouse or other neutral, safe location. Additionally, if the parties meet jointly, the mediator can arrange different arrival and departure times. Alternatively, the mediator could hold separate mediation sessions. Also, the spouses should never be in the room alone together without their attorneys or mediator present.
SPOUSAL COMMUNICATION
Ultimately, whether a divorce mediation could succeed depends on several factors. These include the degree of domestic abuse, its continuity and the kind of abuse involved. A distant isolated incident of domestic violence, distinguished from a pattern of spousal abuse, offers a greater opportunity for mediation to succeed. Whether the spousal mistreatment is verbal or physical or if it is fueled by alcohol or drug abuse are considerations in evaluating the feasibility of divorce mediation. A challenge facing mediators is that evidence of domestic violence often doesn’t surface until negotiations already are underway.
Mediating key issues such as child support, custody and property division depend on the spouses’ ability to communicate openly. A high- conflict interspousal relationship marked by extreme anger and intimidation dooms divorce mediation to failure.
Domestic violence itself is not an issue subject to mediation. Rather, its presence requires the parties, attorneys and mediator to formulate a detailed settlement agreement. The negotiated accord should promote safety. It also should reduce the chance that domestic violence may recur.
CONTROLLING THE MEDIATION
Experienced family law attorneys can evaluate whether a divorce mediator possesses adequate training and expertise in domestic violence matters to manage negotiations in which spousal abuse looms.
Thorough screening of the participants may uncover domestic abuse. The mediator asks the spouses basic, but revealing, questions. For example, what angers them, why do they argue and how do they resolve arguments.
Before commencing negotiations, a good mediator sets ground rules concerning how the parties are to address each other. Additionally, the mediator explicitly condemns violence and intimidation as unacceptable and inimical to a successful divorce settlement agreement. Moreover, the mediator is attuned to coercive behavior. Duress might prompt an abused victim to cede his or her positions to hasten the conclusion of the proceedings to escape the abusive spouse.
TERMINATING THE MEDIATION
Divorce settlement negotiations can proceed if the allegedly abused spouse gives informed consent. The mediator should make certain the victim grasps the mediation procedure. Also, the victim should voice persuasive reasons for wanting to mediate. Assistance of experienced divorce counsel or the support and presence of an advocate is reason to accede to the abused spouse’s desire to proceed.
Sometimes, constructive bargaining is derailed by the participants’ rancorous behavior toward each other. A breakdown in communication between the parties or an atmosphere of fear and intimidation may necessitate shutting down the mediation. Participants in divorce settlement negotiations need to be reminded that mediation is voluntary and can be terminated with or without cause.
If a decision is made to end the negotiating session because of abusive behavior, the mediator should inform each spouse separately about the reasons for terminating the mediation. Refer the abused spouse to domestic abuse advocacy groups.
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Interested in learning more about mediation? Check out our article on parenting plans in divorce mediation.