Can we still do divorce mediation if there is domestic abuse in our marriage? The answer is “maybe.” First, it depends on the nature of abuse. Second, the experience and training of the mediator is critical. If there is no ongoing violence and you have an experienced trained mediator, mediation is still possible.

Nature of Abuse

Domestic Violence

Domestic violence is willful intimidation, physical or sexual assault or other abusive behavior. It is part of a pattern of power and control perpetrated by one intimate partner against another. It is also called “Intimate Partner Violence.”   Most patients who come to the hospital are from injuries caused by stabbing, firearms or blunt trauma. ((The Hospital of the University of Pennsylvania Division of Trauma & Surgical Critical Care, C. William Schwab, M.D. & Carrie A. Sims, M.D.)) In addition to significant injuries, people also think of punching. But it involves any unwanted contact such as pushing, shoving, slapping, pulling hair, poking, or throwing something. It can also involve preventing access to necessary medication such as throwing it away. Sexual contact can be violent. Even if not violent, one can pressure a partner under threat of violence. To make things more confusing, domestic violence does not have to include actual violence. A partner can pressure the other by refusing to let them sleep until they have sex. They can force their partner to have sex with others or to do sexual acts they do not want to do.

Domestic Abuse

Emotional abuse traps the other just as securely as violence. Abusers start with love and concern wanting to spend all their time with someone because they “love you so much.” They will pressure to escalate the relationship as soon as possible moving in together or getting engaged. But, throughout the relationship, they continue to control their intimate partner in most aspects of their lives. This includes what to wear, where they can go, whether they can work, and how they deal with their children. Willful intimidation also includes threatening a partner to hurt them or to kill friends, loved ones or pets. This control covers every aspect of their lives using jealousy or accusing them of cheating to keep a partner alone and isolated. It is difficult to leave when your partner completely controls your every part of your life including your finances by refusing to give you money. Many professionals, including some mediators and attorneys, demean people for not leaving. They don’t see that leaving such a relationship can feel like trying to outrun a speeding train.  Domestic abuse is not limited to low income families. Crossing all racial and economic lines, it is present at every level of society across the globe.

Nature and Timing of Abuse

Many believe that when someone leaves a relationship they will escape the abuse. But divorce is only the end the legal relationship. When someone leaves, abuse almost always escalates because of the loss of control. According the the National Coalition Against Domestic Violence, 1/5 of homicide victims that have restraining orders are murdered within two days of that order. Abusive partners have killed 1/3 of their partners who leave within two months of the restraining order.  If there’s been recent violence and serious ongoing threats, mediation is not recommended, even with an experienced mediator. It is better to refer out to an experienced family law attorney with training in domestic violence.

Mediator Domestic Abuse Training

Divorce mediation is hard work. But with domestic abuse, it is even more difficult with the significant imbalance of power between the partners. In addition, because the abuse relationship does not end with filing for divorce, the mediator’s experience and skills are critical. What are the mediator’s experience, credentials and resume? Is the mediator someone who has trained other mediators under these circumstances? Does the mediator have any formal training on mediation with Domestic Abuse? Anyone in a controlling relationship should not use a mediator without significant experience and training.

Mediator Domestic Abuse Screening

Screening refers to using different methods get information. Information is critical to find domestic abuse in the relationship. Does the mediator screen at all? Unfortunately, many mediators never ask the parties if the other has hurt them. They never ask if either ever feels unsafe when around their partner. Asking once is not enough. A mediator must use numerous methods to screen. Is the mediator giving a questionnaire, telephone and face-to-face? Younger women will more often disclose on paper and older women more when questioned in-person. Recently, it has been found that computer screening is more effective for all ages.((Rhodes, Karin V., Diane S. Lauderdale, Theresa He, David S. Howes, and Wendy Levinson. 2002/11. “Between Me and the Computer”: Increased detection of intimate partner violence using a computer questionnaire. Annals of Emergency Medicine 40, no. 5: 476-484.)) Some people do not recognize the abuse. They will say “You don’t have to ask this. I’ve never been abused.” But they continue to answer “yes” to numerous other questions. For some people, it is only in screening that they realize there is domestic abuse in their relationship. Both people may not want to disclose such personal and embarrassing information. Therefore, the mediator should also look for evidence of domestic abuse by searching court records. Last, even if everyone answers in the negative, the mediator must continue screening throughout the process. Does only one party control the exchanges? Does one constantly interrupt the other? Is there a significant lack of respect or even disgust? If so, the mediator can “check in” separately to ask further open-ended questions.

Mediator Knows There is Domestic Abuse

What happens when the mediator discovers evidence of domestic abuse? Does the mediator attack and belittle the controlling partner? If so, how will that person respond? Does the mediator immediately become the advocate of the victim? Again, that will defeat the entire concept of neutrality. Instead, the mediator must approach each person in mediation with respect and dignity. However, the process will need to be more tightly controlled. Does the mediator gently remind people of not interrupting and enforce it? The mediator can empathize with both parties’ feelings without condoning abusive behavior. The mediator can also coach both parties in between sessions about how to get what they both need from their divorce. They both know that they will not sign anything that they are not comfortable with.  That is what helps the overwhelming majority of couples come to an agreement. Although mediation is not counseling or therapy, it helps set new boundaries after divorce. Both parties learn new communication techniques. They can obtain further support through counseling or groups. Mediation can give them skills. In the end, whether they choose to maintain and enforce those boundaries and skills is up to them.