Should a Domestic Abuse Victim Mediate Her* Divorce?

10/18/2012

Should a Domestic Abuse Victim Mediate Her* Divorce?

By Denise Tamir

I am often asked this question and the short answer is - it depends.  There are many factors that go into whether or not any couple should mediate such as the decision making roles of each spouse during the marriage or how much knowledge each party has about the assets, finances, and debts of the marriage. No matter what the issues were going in, however, if the parties genuinely wish to cooperate and treat each other respectfully, disparate knowledge or divergent power structures during the marriage can be overcome by a skilled mediator.  What makes abusive relationships more difficult, is the fact that the marital relationship was defined by the disparate power and knowledge in order for an abuser to dominate and control his victim. It is the degree to which the victim is still dominated and controlled, and whether or not reflexive responses to the abuser can be overcome, that determines if mediation is appropriate for such cases.

Unlike the typical litigation model, in which the parties continue the dynamics of conflict that they had during the marriage and a judge acts as referee and decision maker, mediation is controlled by both parties equally.  The parties reach their own agreement through a negotiation process that is facilitated by the neutral mediator.  Each party must be able to recognize their own goals independent of the other and effectively negotiate on his/her own behalf to achieve a reasonable agreement. The dynamic of abuser and victim, however, are antithetical to a process that involves mutual respect and shared decision making.

The risks of mediating a divorce for a couple with a history of repeated acts of physical violence are fairly clear.  If a victim fears for her physical safety, it is impossible for her to focus on her needs or the needs of her children during mediation.  Moreover, continued threats of violence will intimidate the victim into accepting an agreement that is not good for her or the couple's children.  Such cases should not be meditated pro-se (without the victim having legal representation) and may not be appropriate for mediation at all. 

Cases where the abuse is more subtle than recurrent physical violence may be just as problematic.  Other forms of abuse may include sexual, psychological, and/or emotional abuse, economic control, threats, coercion, and isolation. Usually, by the time the victim finds the strength and support to leave the marriage, the abuse has gone on long enough that just the threat of violence, or even a look or gesture, is sufficient for the abuser to exert control over his victim. 

Over time, the victim's perception of her own wants and needs become skewed. The victim becomes conditioned to view the world through the abuser's eyes and often places the abuser's needs and desires above their own. Though this seems illogical and irrational to the outside observer, it begins slowly as a survival technique not unlike Stockholm Syndrome.  In order to survive the abuse, the victim will respond to every situation with behavior that at will minimize the abuse.  The victim thus falls into a pattern of appeasement out of necessity and viewing the needs of the abuser as primary becomes natural and even reflexive.

The abuser may be just as incapable of participating in a meaningful mediation process, but for other reasons.  Usually, an abuser is not able to reach any agreement that diminishes his control over the victim and will require one be imposed by a judge.  The abuser, therefore, views the mediation process as just another tool to continue the abuse and control of the victim. The last thing we would ever want is to see a process designed to help couples achieve a reasonable divorce result with less pain and anguish used as a tool to perpetuate a victim's pain.  For this reason, most states that require mediation before a final divorce hearing provide a waiver mechanism for victims of domestic violence.

If mediating domestic abuse cases seem vitually impossible, then why do so many attorneys and mediators still support mediating them? Many believe that the adversarial legal system is so damaging, even for couples that are not embroiled in abuse and violence, that it is worth the attempt to spare a domestic abuse victim the time, expense, and anguish involved in protracted litigation.  Though the circumstances are not ideal, it is still less abusive than the lawsuit.  Others believe that with appropriate safeguards and support, the mediation process can still be meaningful, and even empowering, for a victim of domestic violence. We don't want to require all domestic violence victims to go through protracted litigation in order to divorced, merely because they are victims.

Then when can a victim of domestic abuse mediate her claim? The answer lies in her ability to exercise "self determination," which is a threshold requirement for all mediations.  Self determination in mediation is the ability to identify your goals and advocate for them effectively.  There are many factors, unrelated to domestic abuse, that may impair a party's ability to exercise self determination like alcohol abuse, drug addiction, or mental illness.  In any of these situations, a mediator may determine that a party is not capable of advocating on his/her behalf and the mediator will choose to not mediate or terminate the process once that disability is apparent.  Similarly, a mediator must determine if an abuse victim can separate her needs and goals from those of the abuser, identify outcomes that are the best for her and her children, and negotiate for those outcomes to the best of her ability in the face of a real or perceived threat. 

How can a mediator make those determinations?  Generally, a mediator will meet with the parties separately, either before or during the mediation, to determine if the parties are both capable of exercising self determination. By asking specific questions and observing behavior, a mediator may be able to discover that abuse is present even if the parties try to conceal it.  The issue for the mediator, however, is not whether or not there is abuse, but whether or not that parties can mediate in spite of it.

Once a mediator determines that a meaningful mediation process is possible, there are still many safeguards that can be used to insulate the victim from domination, and protect her safety when required. For example, though mediators will usually begin the mediation with an opening explanation to both parties together, the mediator may separate the parties for the entire mediation.  Logistically, the mediation could take place in separate rooms with the mediator giving an individual explanation of the process to each spouse and continuing the negotiations between the parties in separate private meetings.  The parties may arrive and depart at different times and through different entrances.  For a victim at risk of violence, current technologies like I-Chat, Skype, or teleconferencing may be used to ensure that the victim's location remains hidden.  This may also go a long way towards making her feel safe enough to exercise self determination. 

In applying mediation to domestic abuse cases, there are two schools of thought. Many professionals believe that the dynamics of domestic abuse are so antithetical to mediation process that no abuse victim should ever mediate their divorce.  Many other professionals believe the process can be beneficial and empowering and we should not condemn all victims to an adversarial litigation process that may be even more damaging.  The right answer is different for every couple. If you are a victim of domestic abuse and you are contemplating mediation, the input of skilled and trained professionals like attorneys, counselors, psychologists, and mediators can help you make the decision that is right for you.


*  Although victims of domestic abuse can be women or men, the overwhelming majority of cases involve male abusers and female victims.  We therefore use the female pronouns for clarity and convenience only, recognizing that the information presented can apply equally to male victims.  

Denise Tamir is a Florida Supreme Court Certified Circuit Civil and Family Mediator and owner of The Divorce Mediation Center of South Florida, a group of caring professionals who guide couples through the confusing and emotionally charged divorce process in an atmosphere of mutual respect and dignity. 

Denise can be reached at The Divorce Mediation Center at 786-236-6281 or dtamir@thefairdivorce.com.  Visit our website www.thefairdivorce.com.