Mediation is frequently mandated as a first step for divorce cases, custody and visitation. 50 to 80% of the marriages referred to court-based divorce and custody/visitation mediation programs involve domestic violence (Maxwell, 1999). The prime objective of mediation is to provide both parties of the dispute with a forum to be heard and to understand the other’s perspective. Mediation is designed to be a self-empowering process, with the decision-making is placed with both parties rather than in a judge or arbiter (Folberg & Taylor, 1984). Both parties ability to evaluate their situation and to make decisions about their own behaviours in settling the conflict determine the success of mediation. There has been significant success with the mediation process, with more than half of the mediation from an American survey in 1996 reported agreement rates exceeding 76% (McKinney, Kimsey, & Fuller, 1996).
However, mediation is based on the notion that both parties have a relatively similar degree of decision-making power in the situation (Lederach, 1995). If there is a power disparity between both parties, like most domestic violence cases do, mediation is considered an inappropriate method of dispute resolution for situation (American Bar Association Family Law Section Task Force, 1997). Some of women’s advocate argued that mediation is inappropriate and dangerous to the abuse victim due to unequal positions between the victim and the aggressor. It is impossible to hold a fair, safe, or mutually acceptable settlement when the very nature of an abusive relationship is aggressive and terrifying (Bryan, 1992).
Some of the issues that mediators must consider if they are to deal with domestic violence cases include:
1. Recognize the incidence of violence against women
The critical first step, mediators must learn that violence against women is common, frequent and pervasive in our society. The Federal Bureau of Investigation (FBI) identifies domestic assault as the most underreported crime in America – 10 times more underreported than rape (Hague & Malos, 1993).
2. Recognize the nature of intimate violence
According to statistics, women who are victims of crime are because of people who know them – their friends, partners or their acquaintances. Violence by strangers accounts for less than 20% of the violence directed toward women; meanwhile almost 30% of the perpetrators of rape and sexual assault are intimates (husbands, boyfriends, etc.) (Maxwell, 1999).
3. Recognize professional responsibility
Although a number of statistics reported that domestic violence is both pervasive and potentially dangerous, it is often not acknowledged by helping professionals, even those who deal directly with the victims. Studies examining whether female victims of domestic violence are accurately diagnosed by physicians have reported that fewer than 10% are accurately diagnosed (Mehta & Dandrea, 1998; Stark et al., 1981).
4. Recognize Dissociated Coercion
The effects of domestic violence are more than physical, as physiological hyper arousal, avoidance, and re-experiencing are some of the symptoms of post-traumatic stress disorder (PTSD) often experienced by the victims (Maxwell, 1999). More research on the effects of chronic trauma such as domestic violence proposes that the harm to victims is even more complex than understood (Dutton, 1992).
In conclusion, underreporting and underestimating the full impacts of domestic violence have been the main challenge for professionals involve in domestic violence processing, including mediators. A mediator can expect that at least one out of four women that he or she sees will be suffering from trauma-induced reactions which means negotiating with her aggressor on anything resembling an equal playing field impossible (Maxwell, 1999).
In response towards the issues stated above, some of the recommendations for mediators in domestic violence cases include:
1. Separately screen all mediation participants for domestic violence using explicit questions.
Mediators are encouraged to look for nonverbal, verbal, and behavioural cues of violence. The basic component of mediation need to include explicit questions about the various ways the violence has materialized. Mediation training must provide the skills needed so that mediators can serve as knowledgeable and sensitive assessors of the incidence of domestic violence with basic knowledge of domestic violence (Maxwell, 1999).
2. Understand that the violence from the relationship cannot be mediated.
During a domestic violence case, often there is a disparity of power between the aggressor and the victim and it cannot be mediated. However, continuing interaction and contact between the two parties is often inevitable. Mediators can arrange specific behavioural agreements (such as visitation right, etc) in mediation if both parties can negotiate without the victim being frightened into silence (Maxwell, 1999).
3. Ensure all voices to be heard – for both parties to tell their side of the story
The mediator’s ultimate task is to gain both party’s confidence and trust and to ensure a safe space for open communication between the two can materialized. However, mediators need to be truly aware all the possible issues which could affect the mediation process. If eventually the case proved to be too fragile to mediated, referral to legal representation and advocacy services is better be done sooner rather than later (Maxwell, 1999).