What is mediation? Is mediation appropriate when there is domestic violence present in the relationship?
To begin, mediation is defined as a structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants are encouraged to participate in the process, keeping in focus the needs, rights and interests of the parties involved in the dispute. In a courtroom, the survivor is in the presence of their abusive partner. At best this is difficult, but for some survivors, it may mean that they shut down or aren’t able to respond or think clearly.
Mediation in a domestic violence court case can be helpful when handled in a safe manner. Normally, in mediation, participants are in the same room, but when there is a record or even suspicion of domestic violence, it is best for each participant to be in a different room from the other. The mediator will meet with each individually, going back and forth to discuss the issues and possible solutions. For the outcome to be in the best interest of everyone involved, the mediator needs to have an understanding of the dynamics of domestic violence.
In 2017, the 85th Texas Legislature passed SB 539, requiring a minimum of four hours of domestic violence training for child custody mediators. The Texas Council of Family Violence provides training through a four part webinar:
- Mediation Training Part I: Domestic Violence Dynamics
- Mediation Training Part II: Child Exposure & Resiliency
- Mediation Training Part III: Statutory Framework
- Mediation Training Part IV: Trauma Informed and Safety Centered Practice
All mediators who participate in court-appointed mediation need to have an understanding of the dynamics of domestic violence and its effects on survivors and children. First and foremost, know something about the participants. Hopefully, the attorney representing a client knows ahead of time if someone is a survivor of an abusive relationship. However, it may not have been identified for a number of reasons.
The mediator must be aware of the dynamics that might play into a mediation when all parties are in the same room. For example, some survivors of domestic violence will be submissive in the presence of an abusive partner and acquiesce to any suggestions that are beneficial to the abuser. At the other end of the spectrum will be a survivor who wants justice which, to the untrained eye, could present as revenge, demanding or not accepting of compromises. Even separated from the presence of the abuse, a survivor of domestic violence may react this way. An effective mediator will know how to deal with a wide range of behaviors and attitudes. If the participants arrive at a mutual agreement, a recommendation is made to the court. If not, then the case will need to be heard in the courtroom for a judge to decide.
If you are considering working with a mediator, through your attorney or on your own, ask about the mediator’s credentials. Ask questions and write down your goals. Ask to be in separate rooms. Ask to have an advocate with you. Know that your opinion counts and consider what you want to achieve. Compromise means you may not get everything you ask for, but overall it should be in your best interest and in the best interest of your children.
Written by Kristene Ruddle, Client Advocate at Genesis Women’s Shelter