Guided Problem-Solving

Mediation and Domestic Violence

A history of domestic violence does not necessarily preclude mediation.

California law takes domestic violence and abuse claims seriously.

That being said, there are different kinds and levels of domestic abuse and different types of abusers, not all of which require court intervention, an approach which tends to exacerbate the level and duration of conflict and bitterness. As long as the mediator has conducted an appropriate domestic violence assessment, which reflects that the mediation can be structured with appropriate safeguards including for power imbalances, it can be an effective and less antagonistic alternative to litigation. Such safeguards can include anything from separating the parties into different rooms with the mediator shuttling back and forth between them to online mediation in which the parties don’t even know each other’s physical location. Among other things, power imbalances can be addressed, if necessary, by the parties being represented by attorneys who are also participating in the mediation sessions themselves.

However, the mediation under such circumstances is a means of addressing other divorce and family law related issues – not to resolve the domestic abuse itself. Although, the mediator can certainly provide information and referrals, as needed.

It is worth noting that the American Bar Association has long been aware of the connection between custody battles and an increase in domestic violence. In fact, as many as 50 percent of disputes relating to child custody involve domestic violence. Furthermore, the following excerpt is from a book titled Marital Separation and Lethal Domestic Violence, which is the first book to investigate the effects of participation in separation or divorce proceedings on femicide (murder of a female), femicide-suicide, homicide, and suicide:

"Collaborative proceedings include mediation and representation by lawyers who practice collaborative law. Mediators do not make decisions on outcomes or impose solutions on the parties. Instead, they facilitate communication and negotiations between the separating parties who jointly make decisions on outcomes that usually are or tend to be positive sum (win-win).

Collaborative lawyers use nonadversarial negotiation tactics, emphasize joint problem-solving, and obtain in writing a commitment from the parties they represent not to attempt to get what they want by threatening to engage in litigation/go to court. If they do, their lawyers, by prior agreement, will no longer represent them.

Adversarial proceedings are those in which the parties and the lawyers who represent them conceive of outcomes as zero-sum (win-lose), perceive each other as enemies or adversaries, and use struggle win-lose tactics appropriate for this perception.

Choice of proceedings (adversarial or collaborative) is fateful because victims and perpetrators of all three types of sublethal and lethal domestic violence tend to be concentrated among those who participate in proceedings that escalate rather than deescalate conflict. Participation in adversarial proceedings increases the intensity of conflict...

Participation in divorce mediation decreases the intensity of conflict and consequently the risk of fatal and nonfatal domestic violence....

Family lawyers can be located on a continuum with collaborative lawyers who decrease the intensity of conflict at one end and highly adversarial lawyers who increase it at the other end....

In a survey conducted by Hadeem and Salem (2006), adversarial lawyers represented a fairly large proportion of the 219 family lawyers included in the family law practitioner sample they selected.... Schneider and Mills (2006) analyzed data from their survey, and this was one of their major findings: 'Compared with civil, criminal, commercial, corporate, property, and other lawyers, family lawyers had the highest percentage of unethically adversarial lawyers.'... Ethically adversarial and unethically adversarial lawyers accounted for almost 40% of the family lawyers in the sample. The corresponding figure for all lawyers is 33%. If the potential for sublethal and lethal violence is greater in destroyed relationships than in continuing collaborative relationships, than lawyers in this sample may be unintentionally increasing the risk of both types of violence 'by engaging... in behavior... that destroys relationship(s).'

The specific context for relationship-destroying negotiations is an adversarial system that, not infrequently, produces fateful zero-sum or negative sum-outcomes for couples caught up in its heavy machinery. In this context, 'uncertainty about the decisions made by judges in any particular case motivates family lawyers to prepare and process all cases as if they were going to court.'"

Mark Baer has written extensively on this subject. Four of his many articles on the topic are "Is the Adversary Model Appropriate or Suitable for Family Law Matters?", " The Waiting Game," " The Perfect Storm: Lawyer Limitations and the Adversarial Model in Family Law," " Family Law Litigation: The Gift That Keeps On Giving!," and "Orders Can Trigger Increased Violence."

Mark B. Baer is a skilled family law mediator. He has been helping people throughout Pasadena and the greater Los Angeles area in family law related matters since 1994. He designs safeguards and uses techniques for to provide for the safety of all involved, and that agreements reached are voluntarily made and the result of informed decisions.

Call today to discuss your case with Mr. Baer. He will take the time to listen to your concerns, structure the process appropriately assuming mediation is a viable option, and assist you in resolving non-abuse related family law issues. Mr. Baer is available during regular business hours and by appointment.

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