Divorce Mediation and Domestic Violence

Part I: Screening

In a response to a recent Blog post a reader, who was a certified mediator, asked if mediators are generally screening for domestic violence. She also offered that mediation may be “unsafe” for the victim of domestic violence and that if domestic violence is alleged the mediator should end the session.

In this post I would like to discuss the first issue; that is, are mediators generally screening for domestic abuse. In my next blog I will outline how the mediator may respond if faced with a situation where domestic violence is alleged or has occurred. Because this is an important topic, I encourage all readers to share their thoughts on this issue by responding in the “Leave a Reply” box below.
Should a mediator screen for domestic violence?

The simple answer is almost certainly yes. Standard X of the Model Standards of Practice for Family and Divorce Mediation, which every member of the New York State Council on Divorce Mediation must abide by, defines “domestic abuse” to include domestic violence “. . . as defined by applicable state law and issues of control and intimidation . . .” and requires the mediator to make a reasonable effort to screen for the existence of domestic abuse prior to entering into an agreement to mediate.

But how should that screening take place? On this issue, Standard X is not clear. Some mediators screen for domestic abuse by meeting with each party separately to discuss the mediation process, thereby creating an opportunity for one party (or both) to express concerns regarding domestic abuse, if they wish, outside the presence of the other party. Others send out detailed questionnaires that are completed prior to the first session and which are designed to root out domestic abuse.

Still other mediators offer a caucus to anyone who feels he or she is unable to participate in the mediation process because of concerns for their financial, emotional or physical safety or that of their children. Other mediators “screen” by making sure the ultimate agreement is balanced and fair either by refusing to draft the final agreement or by sending each party to his or her separate attorney to have the agreement prepared or reviewed prior to execution.

Irrespective of how it is done, it seems clear that some type of screening is required before, as well as during, the mediation process.

So, you have done the screening and have determined that domestic violence exists. What do you do now? Do you end the mediation? If not, what steps do you take to “shape the mediation process accordingly” as required by Standard X? This will be the subject of my next blog.

Feel free to ask any questions, to comment, or to request more information in the Reply Box below. Also, please forward this blog to anyone you know who would be interested in its topic.