SPECIALIZED MEDIATION – GENERATING OPTIONS AND PROTECTING THE RIGHT TO CHOOSE


A SUMMARY REVIEW OF SPECIALIZED MEDIATION






JULIE MCFARLANE, COURSE DIRECTOR





AUDRA M. BAYER, STUDENT
OSGOODE HALL, LLM PROGRAM
CORE COURSE PAPER



PRACTITIONER AT
BELLAN WASYLIN & ASSOCIATES
BOX 520 BEAUSEJOUR, MB.
R0E 0C0
(204) 268-2000
FAX: (204) 268-3519
EMAIL: BAYERLAW@MTS.NET


Specialized Mediation – Generating Options and Protecting the Right to Choose




One of the main advantages of the legal system is its structure, its predictability and, some would argue, its certainty. This not only refers to stare decisis but also to the legitimacy and structure of process.

One of the main disadvantages of the legal system is its structure – the structure of process, the procedural and substantive constraints of a formal adjudicative system. One size does not necessarily fit all. Enter alternative dispute resolution processes: mediation, arbitration, negotiation and many various hybrids. These processes by definition are alternatives to the legal process. They are also adjuncts to the legal process in as far as at times they operate as court-connected processes or alternatively, are used in concert with the legal process e.g. a lawyer may refer clients to mediation which, if successful, produces an agreement for review by the lawyer, failing which the lawyer simply picks up where s/he left off in the process.

A.D.R. processes breathe flexibility and hope into the legal process and, by offering options to litigation, bring the promise of differentiated, needs accommodating and party driven processes and solutions. “Today, ADR processes are tailored to respond to the unique needs of the participants, the particular context and history of the dispute, and the specific settlement obstacles presented, as well as practical and institutional constraints. This has produced an array of hybrid processes combining elements of evaluation, adjudication, negotiation, and mediation, free from any rigid definition or preconception about what a dispute resolution process must look like.” (“Hybrid Processes: Using Evaluation to Build Consensus”, Ellen Zweibel, Faculty of Law, University of Ottawa, in Dispute Resolution, Readings and Cases, 1999, Emond Montgomery Publications Limited, Toronto, Canada.

This is particularly relevant in conflicts where there are concerns about power imbalances, and more so in the family context. In her book Dispute Resolution, Readings and Cases,1999, Emond Montgomery Publications Limited, Toronto, Canada at p. 351, Dr. Julie MacFarlane notes that

Different, additional considerations arise in family conflicts. An influential body of scholarship argues that mediation is inherently unsuitable as a dispute resolution mechanism where the parties are significantly unequal. That difficult is exacerbated in family disputes, where the personal nature of the parties’ relationship means there is the potential for entrenched, and sometimes disabling, power dynamics. As a consequence, there is a heated debate about the appropriateness of mediation for family disputes, much of which focuses on the systemic power imbalance between men and women in many family relationships…On the other hand, it is also argued that a consensual process in which both process and outcome can be controlled by the parties themselves is more suitable for resolving acrimonious interpersonal issues than an adjudicative one.”

This paper provides a review of some of the dialogue on this issue. Throughout the paper the assumption should be that we are dealing with cases of high conflict where there are issues of power imbalance, and in particular issues of domestic violence.

GENERALLY

In her article “Family Mediation”, (A. Stitt, ed., Alternative Dispute Resolution Practice Manual [Don Mills: CCH Canadian, 1996], at 3122-29 and 3132-35), Barbara Landau notes that there has been a “considerable shift from litigation to alternative dispute resolution, and particularly mediation, as a method for resolving family disputes. Mediation has a number of advantages, particularly in cases where there are ongoing relationships.” Briefly the advantages she refers to include:
i) reduction in tension benefits children
ii) improved communication
iii) timely resolution
iv) structure and clarity in parenting plans
v) more control by the parties
vi) less formality
vii) less expensive
viii) increased commitment to the result.


IMPARTIALITY

Of particular importance and interest when discussing mediation is the concept and debate concerning impartiality and the mediator or facilitator. The debate is certainly more intense when those advocating for a restrictive definition of impartiality and or neutrality do so within the context of a conflict where there is a power imbalance.

The writer submits that the challenge is not so much to maintain a standard of strictly defined neutrality or impartiality which it is argued will lend credibility to the profession, but rather to work towards a recognition in the profession first of a more global or holistic definition and application of the concepts of neutrality and impartiality. In other words, query what does it mean to be fair and unbiased to all parties equally? How do you define objectivity? Is non-intervention inextricably linked to the concept and application of neutrality/impartiality?

It is further submitted that in order to be fairly objective, in order to be fair and unbiased to all parties, one must look to the dynamics of the conflict on a holistic or global perspective (also referred to expansive see A. Taylor, “Concepts of Neutrality in Family Mediation” (1997) 14 Mediation Quarterly 215, at 226-32). As such, where there is a power imbalance, in order to affect fairness and ensure a lack of bias is it not necessary that the power imbalance be addressed and/or redressed?

Some would argue that in such a case the duty is not to intervene, but rather to terminate (e.g. FMC Code of Professional Conduct). Again, the greater good should prevail. By termination, the end result is an abdication of choice, a throwback to a process such as the legal process whose suitability to deal with the difficult dynamics of such a conflict, the needs of the parties and their children is significantly less by comparison. Further, a throwback to litigation and the legal process is one which is far more interventionist and interventionist in a dictatorial way rather than one which is directive and facilitative.

The intervention by a judge or counsel is intervention that is “top-down” and dictatorial in as far as the judge is dictating a decision, dictating conduct, and dictating process. (Also known as “power over” see G. Chornenki, “Exchanging ‘Power Over’ for ‘Power With’”, in J. Macfarlane, ed., Rethinking Disputes: The Mediation Alternative; Toronto: Emond Montgomery, 1997, at 164-65.) Within the context of alternative dispute resolution processes, the intervention is more directive and facilitative, working towards an evening of the playing field so as to allow the process to continue in a way which focuses the parties on a common goal and allows the parties to come to a decision, and assume control of their conduct and of the process. (Also referred to as “Power With”, Ibid.)

Without question, the mediator/facilitator should have a basic skeleton of the process in place together with a set of well-defined rules which apply to all parties and which must be unconditionally agreed to. These rules form the boundaries, the basic guidelines, which address common courtesy, respect, premises on which productive and constructive communication is dependent, and, finally which address safety concerns.

It is also important to distinguish between intervention to ensure outcome fairness (consequentialist approach) and intervention that ensures process fairness. The former is predicated on the desire to ensure that at the end of the day, the agreement or result is fair to both parties. This would seem somewhat artificial as it begs the question as to what is fair and how is fairness perceived by each party. The result is subjective. It is assumed that in most cases, if each party were to be interviewed and asked to gauge the fairness of the result to each, they would say that the end result although acceptable was more fair to the opposing party than it was to them. In any event, it would seem more logical to direct intervention towards ensuring process fairness, which lends itself to a more objective standard. Further, the result flows from the process. It is common sense that a result which flows from a process, which is perceived to be fair and unbiased, would be more readily accepted.

C. Morris, in the article “The Trusted Mediator” in J. Macfarlane, ed, Rethinking Disputes: The Mediation Alternative (Toronto: Emond Montgomery, 1997), 301 at 231-27, provides the following useful definition of impartiality: the quality of being principled enough to remain equally committed to the interests of all parties.

In this same article Morris notes that power dynamics particularly in the family context make neutrality inappropriate in family mediation.
POWER IMBALANCES AND FAMILY CONFLICTS – DOMESTIC VIOLENCE

As is indicated throughout the literature, “the dynamic of power relations in the bargaining process is not limited to the mediator’s exercise of power, but includes the relative power of the disputants themselves…One of the most significant critiques of the mediation process is that its informality and lack of outside controls allow a more powerful party to overwhelm a less powerful one and thus impose a disadvantageous agreement on the weaker party.” (Dispute Resolution, Readings and Cases, 1999, Emond Montgomery Publications Limited, Toronto, Canada, p.420-421)

Bernard Mayer notes that one of the major criticisms of mediation and related collaborative or cooperative approaches to the resolution of conflict is that “they do not necessarily promote social justice or protect the unempowered. Unless all the players in a problem-solving process have sufficient power to represent themselves effectively, a collaborative process can easily result in an unjust conclusion. Advocates for victims of domestic violence have been concerned that mediation may lead to further victimization”. (The Dynamics of Conflict Resolution, A Practitioner’s Guide, Bernard Mayer, Jossey-Bass Inc. Publishers, San Francisco, 2000, p. 67)

When discussing or expressing concerns about power imbalances, it is important to consider that power is not a measurable quantity:
…the idea that power can be balanced so as to produce some equality or even equivalence of power is very misleading. Such a way of viewing power fails to account for the dynamics of power and the interactional context in which power must be understood. Instead of thinking that people need an equivalence or equality of power, we might more usefully think that people need an adequate basis of power to participate effectively in conflict. They require enough power that others must at least consider their concerns and enough power to resist any solution that fundamentally violates their interest. (Ibid, p.52)

This principle is echoed in academic literature which advocates a differentiated mediative approach to cases where domestic violence is a factor. Their position is that where an individual chooses mediation and is able to negotiate effectively and productively, safely, voluntarily and competently towards a fair agreement, that choice should be effected. That does not mean that there is an equal sharing of power, that is if power is even quantifiable, but that each party has an adequate power base, which allows them to meet the above-noted standard. There are many, however, who continue to be of the mind that where domestic violence is a factor, mediation is never appropriate.

MEDIATION AND DOMESTIC VIOLENCE

The use of mediation in cases involving domestic abuse has kindled heated debate. The legal process, however, does not always provide reasonable or safe alternatives for families either.

“Domestic violence is a pervasive problem that devastates all family members, and challenges society at every level. It violates our community’s safety, health, welfare and economy by draining billions annually in social costs such as medical expenses, psychological problems, lost productivity, and intergenerational violence”. (“Family violence in Child Custody Statutes; An Analysis of State Codes and Legal Practice”, The Family Violence Project of the National Council of Children’s Advocates, at p. 209.)

The children of these relationships are at high risk of emotional and behavioral dysfunction and social maladaptation due to the chronic parental conflict and their witness to hostility and violence. The victims of domestic violence are vulnerable, feel powerless and look to the legal and professional communities for support and guidance.

Domestic violence is:
- pervasive
- affecting a wide range of victims without regard to socioeconomic status, culture, race, age
- varies in degrees of severity
- is not limited to physical assault but spans a continuum of behaviors including isolation, threats, intimidation, and emotional, sexual and economic abuse
- is a control mechanism
- is not and should not be treated as a private matter.
(”Victim at home, victim through mediation, When Domestic Abuse is an Issue”, Ann L. Milne, Peter Salam and Kristin Koeffler, Family Advocate, Spring 1992, p. 34)

It is a fact that the cases that go to trial and are reported are just a “tiny fraction of all the cases in which parents have separated and there are spousal abuse issues. The cases involving survivors of abuse who go to trial are not typical; they tend to be those where victims have the most effective or supportive counsel, or where the women have the emotional strength to withstand the pressures to settle” (“Wife Abuse and Family Law in Canada”, Martha Shaffer and Nicholas Bala, p. 18, submitted to the Journal of Emotional Abuse, edited by Robert Geffner). This fact in of itself is an argument for the advocacy, design and implementation of a differentiated alternative dispute resolution process for these types of high conflict cases.

Ann Milne, Peter Salem and Kristin Koeffler question in their article, ”Victim at home, victim through mediation, When Domestic Abuse is an Issue”, Family Advocate, Spring 1992, p. 34, whether it is a choice between the lesser of two evils or is there a middle ground?

The one point where there seems to be agreement in the literature amongst advocates, counsel and alternative dispute resolution professionals are that where there is abuse, that abuse is a significant factor to consider when choosing a process to resolve family conflicts.

Milne, Salem and Koeffler (Ibid) point to the following disadvantages in each process (also based on Mnookin and Kornhauser “Bargaining in the Shadow of the Law: The Case of Divorce” 88 Yale Law Journal, 950, 1979):

A. The Legal System:
- costs of litigation;
- pain of formal adversary proceeding;
- risks and uncertainties, which involve all or nothing consequences;
- delay;
- abuse often remains unidentified and unreported by the victim;
- victims frequently have difficulty identifying their own interests;
- to preserve their own safety, victims may place the batterer’s needs ahead of their own;
- Victims may have limited access to economic resources and many cannot afford adequate legal representation particularly as many of the lawyers who represent women in these cases lack the training and resources to deal adequately with them (see also “Wife Abuse and Family Law in Canada”, Martha Shaffer and Nicholas Bala, p. 19, submitted to the Journal of Emotional Abuse, edited by Robert Geffner”);
- Even if abuse is identified, support services retained and the victim’s needs clearly identified, meeting those needs is not guaranteed;
- Judges rarely limit a father’s access to the children unless there is evidence that he has/is abusing them as well (Shaffer and Bala, Ibid, p. 13);
- It is difficult for a court to impose and enforce supervised visitation (and see Shaffer and Bala, Ibid, p. 18);
- Allegations are minimized or viewed as an adversarial tactic when the abuse is an isolated physical incident, is emotional or verbal in nature or occurs in the context of a contested divorce;
- The negotiation process is so heavily influenced by court precedent that the victim who is seeking remedies such as limited or supervised visitation may be at a disadvantage during negotiations;
- The level of funding per case is inadequate for the complex demands of these cases (Doucette, 2001; in Shaffer and Bala, Ibid, p. 19).

B. Mediation
- Mediation may trivialize the crime of abuse and result in agreements that are informal, unenforceable and inappropriate for children;
- Requiring parties to enter the same building and sit in the same room can compromise victims’ safety;
- Mediator may not be aware of the violence and therefore cannot offset the power imbalance;
- An abuser’s private but well-calculated glance at the victim can be a powerful and controlling reminder of past violence and future consequences.

Milne, Salem and Koeffler point out that the implication is that legal advocacy may yield a superior outcome. This is contradicted however they note by the experiences of many battered women, which suggest that the same problems pervade the legal system.

The case study conducted by Shaffer and Bala (Ibid, p. 8) that reviewed 45 reported Canadian family law cases from 1997-2000 that had spousal abuse issues found that “there continue to be problematic judicial statements about spousal abuse, and questionable approaches to some of the cases that raise spousal abuse issues”. Other concerns noted in this study include:

1. the court found women’s claims of abuse to have been exaggerated or unfounded;
2. judges failed to recognize abuse because it was not well documented or because the abuse took a predominantly emotional, rather than physical form;
3. in the absence of medical records, police reports or witnesses to the abuse, judges may have difficulty finding that abuse occurred and in fact, this was mentioned as a problem in some of the cases:

In part this may be a function of the law’s requirement that the person making an allegation of abuse prove it to be true on the balance of probabilities (the equivalent of the American standard of proof on a preponderance of evidence. Often the only adult witnesses to spousal abuse are the spouses. While children often see or hear spousal abuse (Statistics Canada, 2001), there are a variety of evidentiary and ethical concerns about calling them as witnesses. Absent evidence corroborating the woman’s allegations, judges may be reluctant to find that abuse occurred. Since many women do not disclose their abuse or report it to doctors or call the police (Statistics Canada 2001), it may be difficult to prove in many cases;
4. since many judges perceive abuse as being restricted to physical violence, where the abuse is emotional or verbal, courts may have difficulty even conceptualizing the conduct as abusive, viewing it instead as mutual conflict or disagreement;
5. many of the comments which judges make continue to provide cause for concern about judicial sensitivity to woman abuse issues; and
6. finally, the recognition that it may be risky to place a child in the care of an abusive man does not seem to have carried over into the courts’ assessment of access, as access is routinely awarded on an unsupervised basis to abusive men. (Ibid, pp. 8-11)

Shaffer and Bala (Ibid, p.6) point out that despite some reform to the Criminal Code provisions dealing with child/spousal abuse and a number of provinces having enacted laws dealing with protection/prevention orders (see Manitoba’s Domestic Violence and Stalking Prevention Act), “no province in Canada except Newfoundland has custody or access legislation that makes reference to domestic violence as a factor in dealing with child related issues. Rather issues of custody and access are decided on the basis of the highly discretionary “best interests” of the child test.” This begs the question as to how Marital Dissolution Practitioners can advocate that the courts and litigation are the only safe and reasonable choice in cases where abuse is a factor?

This same case study found however that there remains a significant need for training and education on domestic violence for all professionals dealing with these cases. This finding is based on the research of Linda Neilson, 2000, “Partner Abuse, Children and Statutory Change: Cautionary Comments on Women’s Access to Justice”, Windsor Yearbook of Access to Justice 18: 115-132, which found that, “despite the fact that the Canadian legislation makes clear that the actual test for determining whether there is to be access is the “best interests” of the child, in practice many judges, lawyers and mediators continue to operate on the presumption that all spouses, including those who are abusive, have a right to have access to their children…” In her dissertation, “Spousal Abuse, Children and the Legal System..” Fredericton N.B.: University of New Brunswick, http://www.unb.ca/arts/CFVR/spousal_abuse.pdf, 2001, Professor Neilson states that “despite the concerns about access, in the absence of clear evidence of child abuse, many lawyers (in negotiations), judges (in pre-hearing settlement conferences) and mediators pressure victims of spousal abuse into agreeing to on-going access to a child. Indeed, as a result of financial and psychological pressures to settle cases, spouse abuse victims may feel pressure to settle even if they have on-going concerns about inadequate care, possible child abuse of high risk behavior by the non-custodial parent during access visits.”

Bala and Shaffer concur (Opcit, p. 20) and state that it is “clear that too often judges, lawyers, mediators, assessors, police and other professionals fail to adequate recognize and deal with spousal abuse issues, and that too often children and victims are endangered as a result. Too often victims of abuse are pressured by circumstances, a lack of resources, and a lack of effective advocacy into accepting resolutions that leave them and their children vulnerable to further abuse”.

Finally, the Senate Task Force Study (1987) cites evidence showing that if the mediator I unaware of the domestic violence history, “there is a tendency to come to the conclusion that the woman is overprotective of the child and is attempting to thwart the father’s contact”.

In other research it is noted that victims who exhibit “post traumatic stress symptoms may be mistakenly assumed to suffer from more severe and/or unalterable forms of mental disturbance”. (Walker, 1991 in “Child Custody Mediation and Spouse Abuse – A Descriptive Study of a Protocol, Holly A. Magana, Nancy Taylor, Family and Conciliation Courts Review, Vol. 31 No. 1, January 993, 50-74, 1993 Sage Publications, Inc.).




A DIFFERENTIATED OR SPECIALIZED MEDIATION PROCESS

Professor Nicholas Bala, in his comprehensive dissertation advocating for a differentiated approach to custody and access disputes where domestic violence is present, states:

There is a need for all professionals who work with families affected by separation and divorce to have knowledge, understanding and sensitivity about issues of spousal abuse. There must be awareness of the different forms, nature and effects of spousal abuse, and an ability to help develop appropriate, differentiated responses, in particular in regard to children. (“Spousal Abuse in Custody and Access Disputes: A Differentiated Approach”, Nicholas Bala, Queen’s University, 1998, at p. 2) and at p. 20:
“All justice system professionals who work with divorcing couples, including lawyers, judges, police, assessors and mediators, need the knowledge and training to deal effectively with situations where spousal abuse is at issue, and in particular should be aware of the risks faced by victims of abuse and their children. These professionals must appreciate that spousal abuse covers a broad range of conduct. While physical abuse represents the most obvious danger, emotional abuse can also be extremely destructive.
Given the wide range of abusive spousal conduct and the high portion of separations and divorces that involve at least one incident of spousal violence, the justice system and the professionals who work in it need to develop differentiated responses that take account of the specific situation of abuse and its effect on the particular parents and children involved.”

In addition to knowledge, understanding and sensitivity as indicated above, a set of rules which not only addresses the needs of mediation as a consensual decision-making process but those which address procedural safeguards must be followed. If not, the risk is further victimization and this is a risk, which cannot be assumed.

Process, rules and structure are all key factors to any successful mediation process. Mayer (The Dynamics of Conflict Resolution, A Practitioner’s Guide, Jossey-Bass Inc. Publishers, San Francisco, 2000, p.12) reminds practitioners that the structure in which the mediation takes place can escalate the conflict or be in of itself, another sources of conflict. Practitioners, particularly where domestic violence is a factor and where escalation of conflict could be dangerous or even lethal, must turn their minds to the “details” of the process which include available resources, decision-making procedures, time constraints, communication procedures and physical settings. The physical setting can play an important part not only in terms of safety but also in terms of providing a more cooperative atmosphere as opposed to one which is adversarial.

There are serious risk issues involved in abuse cases that cannot be minimized or overlooked. These cases should only be handled by professionals who have special training and use processes that use policies and procedures specifically designed to address safety issues. A study of 100 mediation cases involving violence between spouses found that the couples had experienced up to 150 incidents of violence per year and further that one-third of the women’s lives had been threatened, fifty percent had been hit with a closed fist and fourteen percent had been threatened with a weapon. More than 50 percent of the cases involved substance abuse and another third of the cases contained allegations of child abuse (“Child Custody Mediation and Spouse Abuse – a Descriptive Study of a Protocol”, Holly A. Magana, Nancy Taylor, Family Conciliation Courts Review, Vol. 31 No.1, January 1993, pp. 5-64, 1993 Sage Publications Inc., at p.61).

The mediators who work with these cases play a valuable role by identifying risk factors that have historically been associated with violence. Research has established that “given the impact of marital violence on children’s psychological functioning and the increased likelihood that children from these families may be victims of abuse themselves, practitioners need to assess the family’s history of violence. The assessment can determine the impact that family violence may have had on the children and is essential to developing a parenting plan that meets the children’s needs.”(Ibid, p. 53.) The difficulty is structuring an agreement for access that provides for the safety of the family and which also meets the children’s needs.





PROCESS ISSUES
Expression of Feelings
Taylor and Magana (Ibid at p. 54) point out that the process provides an opportunity for the batterer to vent and express feelings that is integral to any long-term resolution of the conflict and issue of violence. Taylor and Magana (Ibid, p. 54) assert that, “an interview with a well-trained mediator can provide at least one safety valve for the expression of the perpetrator’s grief and anger during the dissolution process. Sometimes, he can be helped to refocus his concerns on his children’s needs, including their need to have a relationship with him and to stop seeing violence between their parents. This interview can also serve as another means to assess the potential for future violence. The extent to which a batterer is able to express grief, accept responsibility for the violence, and focus on his children’s needs, rather than remaining focused on feelings of anger toward the mother, may be an indicator of the extent to which future violence can be abated.”

The expression of feelings during separate interviews is particularly important given as Bernard Mayer points out in his book The Dynamics of Conflict Resolution, A Practitioner’s Guide, Jossey-Bass Inc. Publishers, San Francisco, 2000, p. 11, that a direct expression of feelings may escalate conflict. The expression of feelings in a separate interview allows for the discussion of feelings in a safe environment for both parties. Mayer also notes that while emotions fuel conflict, “they are also key to deescalating it…The art of dealing with conflict often lies in finding the narrow path between useful expression of emotions and destructive polarization.”

Procedural Safeguards
Also, as indicated above, mediators/facilitators can be impartial and unbiased towards the parties and nonetheless condemn violence and aggression providing a code of conduct and a safety mandate, which is non-negotiable. There are a number of procedural safeguards in place in various programs that deal with cases where domestic violence is a factor that includes:
- intake schedules to be set a different dates and times
- separate group orientations
- parties do not attend mediation sessions together
- abuser must arrive first and leave last
- victim must have an escort
- shuttle mediation and caucusing are the norm
- mediation teams (male/female)

With regard to this last safeguard, the sexual harassment model provides a useful comparison and starting point for a process where power dynamics are central in a highly sensitive forum is that of sexual harassment claims. In her article “Model Procedures for Sexual Harassment Claims” (September 1993), Arbitration Journal 66 in Dispute Resolution, Readings and Cases,1999, Emond Montgomery Publications Limited, Toronto, Canada at p. 466, Andrea Williams notes that existing dispute resolution mechanisms do not address the full range of issues and conflicts that surface in these types of disputes and advocates for a differentiated approach. She underscores that each party in the relationship has particular needs.
Neutral Team
The strongest and most useful comparative in this process is that of the neutral fact-finding team. The team consists of one male and one female. The presumption is that the accuser may be more comfortable talking to a person of the same gender and likewise for the female. This assumption is made with equal veracity and perhaps more so in cases where there are power imbalances in family disputes, particularly where domestic violence is a factor. The theory is that a male-female team brings a balanced perspective and mitigates any issue of bias.

The advantages of mixed-gender teams include:
i) outside of the interviews, the team can use the other member to deepen its understanding of the other gender’s perspective and support;
ii) particularly sensitive questions can be asked by the same sex interviewer;
iii) the interviewee tends to make eye contact with the same sex person while answering sensitive questions, thus easing the tensions inherent in discussing intimate/sensitive subjects. (Ibid, p. 467)

Magana and Taylor point out that “a male/female mediation team is used to insure both a male and female perspective in assessing these difficult cases. In addition, each client may relate better to a same sex mediators.”



Screening and Training

For various reasons many victims do not disclose the abuse. This is common and is such a significant concern that all family mediators and particularly those engaging in mediation where the dispute is characterized by high conflict, must use effective screening programs which include a thorough review of the court file which may contain restraining orders and other evidence of abuse; confidential intake questionnaires completed by each spouse; confidential, individual intake sessions and/or caucuses.

Screening and training are inter-dependent in as far as the ability of those carrying out the screening to detect signs of violence or intimidation and to address the consequences or consequential power imbalance and related dynamics particularly where the information is not volunteered will be very much dependent on background, education and training with particular regard to the dynamics of domestic violence.

It is important to recognize that although the signs of abuse may not be evident at the outset, nor disclosed, as the mediation process progresses, screening will have to be consistently re-evaluated. This is imperative given that case studies reveal that in many situations abuse continues post separation including stalking, physical assaults, emotional manipulation and serious attempts to denigrate and undermine women’s parenting abilities and further that violence tends to escalate post-separation (see Bala and Shaffer, “Wife Abuse and Family Law in Canada”, p. 8 submitted to the Journal of Emotional Abuse, edited by Robert Geffner)

Girdner’s screening model, “Mediation Triage: Screening for Spouse Abuse in Divorce Mediation”, Mediation Quarterly, Vol. 7, No. 4 (Summer 1990) sorts divorce-related disputes into three categories: a) those persons likely to benefit from mediation conducted as usual (no abuse identified) b) those likely to benefit from mediation conducted with specific ground rules, resources and skills and c) those who should be excluded because they are more likely to experience harm.

Where there is abuse and the parties choose an alternative to litigation, the process should be a hybrid or differentiated approach that integrates special skills, ground rules, and interventions which include separate sessions, shuttle mediation, telephone mediation and frequent caucusing all used to ensure safety and to impede attempts to intimidate, coerce or manipulate. (Opcit)

PROTOCOLS

Studies and research suggest that mediators using protocols such as the two described below are able to guide the more serious, high-risk cases into more protective outcomes and that mediation can provide a very important adjunct to the trial court process (“Child Custody Mediation and Spouse Abuse – a Descriptive Study of a Protocol”, Holly A. Magana, Nancy Taylor, Family Conciliation Courts Review, Vol. 31 No.1, January 1993, pp. 5-64, 1993 Sage Publications Inc.)





A. ORANGE COUNTY MEDIATION AND INVESTIGATIVE UNIT

The Protocol developed by the Orange County mediation and investigative unit provides protection to the alleged victim of violence through the use of assessment interviews, co-mediation with a male-female mediation team and the development of post parenting arrangements that provide for protection and security.

The Orange County protocol was specifically designed to balance the power between the parties (victim-perpetrator), address safety issues, protect the parties from premature face-to-face negotiations and to focus on children’s needs. The protocol consists of:

a) obtaining the spousal abuse history prior to the mediation;
b) using a male/female mediator team;
c) employing initial interviews for the mother and father, with joint interviews occurring only when safety is not compromised and if both partners so desire;
d) ensuring the availability of a marshal to escort victims from the mediation office when necessary and to protect their safety while in the office; and
e) having the option to refer a case for an investigation when it appears that the parents are unlikely to arrive at an agreement that protects the safety of all family members (this being relevant only where mediation is confidential and does not result in a recommendation to the court when there is no agreement). (Ibid, p. 54)

Each party is interviewed individually. They typical interview with the woman would canvass and focus:

(i) heavily on safety issues including:
- history of violence, when it began, frequency; nature of injuries; if children have been hurt; any threats to her or children; whether spouse owns weapons and/or has used them; substance abuse issues; restraining orders, police involvement and legal proceedings; violation of orders;
(ii) relationship with batterer;
(iii) issues relating to children including safety, relationship with father, and plans for access;
(iv) referrals to community and professional resources including counseling, medical and other.

The typical interview with the man would canvass and focus:

(i) on expression of understanding of the father’s estrangement from the family;
(ii) his expression of his perspective of the situation and response to allegations;
(iii) his expression of feelings of loss, sadness or anger without minimizing or overlooking the issue of violence;
(iv) throughout this process the mediator assesses the levels of anger, desire for retribution and impulses toward violence. The mediator must be respectful during this process of the due process rights of a man who denies the allegations and in such cases, a more thorough investigative or assessment process is required to protect the rights of the parties and to uncover a reliable picture of the history and dynamics of the family;
(v) plans for access;
(vi) referrals to community and professional resources including counseling, anger management, and others.
(Interviews, Ibid, pp. 55-56)

The first agreement reached is often temporary which provides a safety net, which allows the parties to return to discuss and assess how it is working and allows for changes to be made. Unlike many other mediation programs, this program also allows for a continuation date in the legal proceedings, usually set for shortly after the follow-up appointment in the event that the agreement is not working and court intervention is required or in the event that the agreement is working and the parties wish the agreement to become an order of the court. This process is all about options, safety and the best interests of the family.

Another interesting dynamic of this protocol is that where the mediation is confidential, as is the case in Orange County, a special investigatory process called the domestic relations investigation, (Ibid, p. 56), was designed as an option. The process finds its authority in statute in the California Civil Code. The mediators have a number of other options encoded in statute including the recommendation of a psychological evaluation, a child custody investigation (analogous to the more familiar process in Canadian family jurisprudence of family evaluation and assessment typically performed by a psychologist, social worker or psychiatrist) or an attorney for the child (known as an appointment of an amicus curae in Canada).

The advantages of and differences of the investigatory process over the assessment process are:
- it is focused on safety issues
- it is expedient, often completed within 4-6 weeks of the Order
- not unlike the assessment process, it involves interviews of the parties and appropriate collaterals including family members, teachers, doctors, counselors, etc.\
- involves criminal record checks, child abuse record checks and checks of probation
- the investigator submits a brief (4-5 pages) report to the Court summarizing the information and making recommendations re: protective orders and other safety measures recommended to insure the safety of the parties and the children.

This protocol was used in a number of cases and Taylor and Magana conducted a study, which reviewed 100 of those cases. Despite the seriousness of the allegations in many of the cases, just over fifty percent (51 cases) of those came to an agreement in the first session which is comparable to agreement rates reported by other programs. The agreements are highly individuated and focused on safety issues and typically include specific protective elements (17 of 51 cases) including supervised visitation, no visitation or third party transfers. Approximately 25 cases of the 49, which did not settle, were referred for either investigation or assessment. (Ibid, p. 62)

The study concludes that the protocol described above is a useful vehicle for guiding high-risk, high-conflict cases into protective outcomes. It is underscored that many of these cases do not, and did not (51 cases) require an investigative or evaluative report in order to address the safety issues. The parties were sufficiently aware of the risks themselves and agreements were made which provided for stringent protections. Finally, it is noted that further long-term follow-up studies are required to assess the longer-term outcome for these families (Ibid, p. 63).

B. THE REPORT FROM THE TORONTO FORUM ON WOMEN ABUSE AND MEDIATION (1993) AND THE ABUSE POLICY OF THE ONTARIO ASSOCIATION FOR FAMILY MEDIATION (contained within the OAFM Code of Conduct for Mediators (1993))

The Report from the Toronto Forum on Women Abuse and Mediation (1993) contained recommendations for screening, training and accountability, voluntariness and informed choice, access to legal advice and support groups and further included specific recommendations from a number of cultural groups. The Report was the catalyst for the OAFM abuse policy.

THE REPORT

“The purpose of this report… is to help national, provincial and state mediation associations devise and promulgate standards of practice, policies and protocols for the safe, fair and specialized practice of mediation in cases involving abuse against women”. (Report from the Toronto Forum on Woman Abuse and Mediation, June 1993, Project Director, Barbara Landau, Report Editor, Paul Charbonneau; p. I, Executive Summary)

This report, it would seem, was in some respects an effort to address the issue that there is as of yet no established or universally applied standards of mediation practice in cases where domestic abuse is a factor. While professionals in the alternative dispute resolution field and women’s advocates continue their efforts at dialogue and collaboration, as indicated above, the heated debate as to if, when and how an alternative process could or should be adapted and practiced safely and fairly when abuse is a factor, continues to rage.

Nevertheless a number of protocols have begun to emerge as has a recognition that given a process which fully and appropriate addresses safety concerns, cultural concerns and family needs, alternative, mediative processes could be and should be recognized as a suitable and viable option.

The Report is comprehensive and begins by address the issue of the education and training mediators. In addition to the matters already discussed relating to education and training, the Report sets out the following premises:
i) the education and training of family mediators regarding abuse in intimate relationships must stress both knowledge and competency in working with issues of abuse;
ii) given the potential for lethality and the high degree of physical and emotional risk when abuse exits, family mediators need to attain a minimum level of education and training in this area
iii) the mediators must be knowledgeable and skilled in screening, handling and referral of cases involving in abuse and understand how principles of cross-cultural mediation apply in cases of woman abuse;
iv) must be prepared and able to use appropriate strategies and interventions;
v) training should emphasize that the process must do no harm; and
vi) the mediators MUST NOT BE neutral about safety and MUST advocate for a safe and fair mediation process. (Ibid, pp. 4-8)


SCREENING

Pre-Mediation screening is the second issue addressed by the Report. The penultimate principle enunciated in this section that is the essential principle upon which any alternative process used where abuse is a factor is that “parties to mediation must be able to mediate safely, voluntarily, and competently in order to reach a fair agreement.” (Ibid, p. 9) There is recognition that abuse can significantly impair or diminish a person’s ability to mediate. Consequently, pre-screening is an essential and integral step prior to any family mediation in order to screen for abuse and its effects. The goals of the pre-screening are to:
- identify and sort those cases for which mediation is likely to be appropriate, not appropriate or for which may be appropriate if a specialized process is used;
- determine whether other alternatives may be more appropriate;
- ensure that clients have the ability to mediate safely and competently and to ensure that mediation’s primary standards of safety, voluntary participation and fairness can be met;
- determine the probability that in certain cases, the process may have to be terminated because the standards cannot be met;
- provide information useful to allow for modification of the process to ensure compliance with the standards of safety, voluntariness and fairness;
- protect the mediators from harm and from being as party to an unsafe and unfair process. (Ibid, p. 9)
According to the Report, the efficacy of the screening process is dependent on the following conditions:
- an assumption that there is in every case, some degree of abuse unless otherwise demonstrated;
- the screening of personnel and mediators to ensure competency in the identification and handling of issues relating to abuse (this goes to education and training);
- the ability of services and mediators to make an independent choice to either accept or refuse clients based on a best interests test as opposed to other influences including court pressure, legal pressure, funding source requirements, etc.; and
- that mediators are aware of and inform and refer their clients to alternatives if the abuse precludes or tentatively precludes mediation. (Ibid, pp. 9-10)


The Report’s protocol for screening is predicated on a rebuttable presumption against the use of mediation in cases of domestic abuse. The recommendations flowing from this are that:
a) mediation services should develop and utilize two-tiered screening systems which provide an initial, quick and simple screening process to ascertain which exceptional abuse cases may proceed to more extensive screening in order to determine suitability for specialized mediation and
b) those screened out should be referred to safety planning related to their participation in any marital dissolution system.

The balance of the protocol dealing with screening suggests that:
- screening must be done before a case is accepted,
- monitoring must be continuous throughout the process to determine whether modification or termination of the process is required,
- clients must be interviewed separately in order to ensure and facilitate a safe environment, encourage disclosure and determine the parties’ ability to mediate,
- screening must include an assessment of dangerousness to identify risks for injury and/or death and appropriate referrals must be made,
- the safety and risk assessment should include an in-depth relationship history from both clients,
- the mediator must ensure that participation is voluntary and based on informed consent failing which, a referral to alternatives should be made,
- mediators need to assess the victim’s ability to represent their interests reasonably, effectively and separately from the interests of the abuser, particularly as victims are conditioned to accommodate their partners’ wishes to avoid or reduce injury and abuse and they may continue that pattern in mediation to the point of acquiescing to an unfair settlement,
- the abuser’s ability to mediate should be assessed by determining whether the violence and abuse has ceased and whether he has accepted responsibility for same and recognizes the victim’s right to autonomy,
- there should be an assessment of the power imbalances and the mediator must turn his/her mind to whether or not they are able to compensate for same,.

Finally, the Report suggests that mediation services must set boundaries which will be used to draw a clear line for the public and the legal system in as far as which cases will not be accepted for mediation even prior to screening. (Ibid, pp. 9-18)

SAFETY AND SPECIALIZED MEDIATION

The Forum Report advocates for a specialized process which is analogous to and may in fact be synonymous with the differentiated approach advocated by Bala. Prior to setting out the protocol relating to safety and specialized mediation the Report clarifies that the adoption of safety provisions or provision of specialized mediation do not on their own make mediation in abuse cases appropriate. The fundamental principles guiding a decision to mediate/not mediate include:

a) that mediation do no harm and be seen to do no harm
b) that all reasonable steps should be taken to ensure that no one is put at risk by offering a mediation service, recognizing that safety can never be unconditionally guaranteed,
c) that risk and safety assessment may require the denial or termination of mediation, and
d) that minimizing risk and maximizing safety is require at every stage of the mediation process and is equally crucial during intake and at the point of termination. (Ibid, p. 19)

Further, a practitioner must assume the following responsibilities where abuse and violence are factors:
- the duty to warn clients, colleagues and others of threats to kill, injure or harm;
- the duty to protect BOTH clients in as far as referrals to community and professional resources for both the batterer and the victim; and
- the duty to report (to police and child protection agencies). (Ibid, pp. 19-20)
The specific protocol guidelines relating to safety and specialized mediation include:
a) that the minimization of risk and maximization of safety are principles which direct the development of all protocols, interdisciplinary collaboration and research on the effectiveness of mediation, alternatives to mediation and supporting services;
b) SAFETY FIRST – safety above all and plans and practices must be planned and in place BEFORE the initial client contact which includes addressing issues of environmental safety (e.g. spacious rooms which are cleared of all items which could be used as weapons, conference tables which act as barrier; supplemental, private rooms; visible and accessible presence of a peace officer; exits; availability of other staff; availability of third party escorts; appropriate safe, separate waiting areas, etc..), education and training of common referral sources such as attorneys and health professionals, pre-screening process, and protocols in place;
c) Clerical staff/intake workers must be equally educated and trained in domestic abuse and should be able to put that knowledge into practice in the event that this is required to secure the safety of clients;
d) Prior to the commencement of the mediation, a safety plan for the victim should be in place which is individualized to address the mediation itself and the victim’s safety needs;
e) As previously indicated, safety and screening issues are issues which are revisited again and again throughout the mediative process and all obligations relating to safety are also ongoing obligations;
f) Specialized or differentiated mediation requires and demands the use of specialized and specific skills, strategies and interventions and practitioners must be knowledgeable of these and competent in the implementation and practice of these as well including:
-suggesting that the woman arrive ten minutes after her partner and leave ten minutes earlier and assisting her to do so
-asking the woman if she would prefer to be seated closer or further from the door
-not seating the parties opposite each other
-placing the mediator’s chair closer to the abused person
-setting ground rules for conversation between the couple to reduce fear and intimidation
-establishing and clarifying signals to communicate feelings of intimidation or desires to end a discussion or stop the session
-allowing the abused person to leave mediation without urging her to continue
-minimizing power differences by such techniques as encouraging the abused person to take agenda notes
-caucusing to explore fears and other feelings safely and openly
-shuttle mediation
-co-mediation with female and male mediators
-encouraging the active participation of attorneys during the session
-allowing the presence of an advocate or support person and
-discussing what ought to happen if violence recurs or if agreements are not kept

g) the practitioner should always keep in mind that abusers might unduly protract the mediation process to secure continued access to their partners, pressure reconciliation or coerce concessions. This can compromise the safety of the victim.
(Ibid, pp. 20-23)

SAFETY AND THE CLOSURE/TERMINATION OF MEDIATION

The termination of mediation has inherent consequences for the abused and children and potentially for practitioners and support staff as well. The Report recommends the use of specialized strategies for termination including:

-utilizing the abuser’s language and information, when appropriate, as a reason to terminate mediation, ensuring that the abused is never blamed for termination;
-enabling the abuser to decide for himself that mediation is not suitable or likely to be productive;
-eliciting from the abused person her and/or her children’s particular safety needs at the time of termination;
-when possible, working with the abuser to develop a termination strategy;
-allowing the abused person to leave the place of mediation first and delaying the abuser’s departure.

ALTERNATIVES TO MEDIATION

The final recommendations contained within the report deal with alternatives to mediation. The authors of the report correctly point out that, “more than any other divorcing or separating population, abused women need the clarity and finality of divorce provisions that explicitly allocate parenting responsibilities, economic support and distribution of marital property and that incorporate protective measures and limitations on the abuser’s access to the children and the abused partner.”

The principles enunciated by the Report in this section, speak to the legal community, the alternative dispute resolution community and our socio-economic community as a whole. These principles or directives can be summarized as follows:
1. Provide Alternatives
2. Dedicate Resources
3. Provide Education so as to allow for Informed Choices
4. Legal Representation is a pre-condition to ANY dispute resolution process and such representation should be authorized and economically accessible
5. Safety is Paramount and funding should be secured and dedicated to ensure that safety requirements are met
6. The Best Interests of the Children and their needs particularly in the context of cases where domestic violence is a factor is the primary consideration and children should actively participate in any assessment process
7. Court-mandated or referred mediation should automatically allow for exemption from those processes where there are issues of abuse. Courts and/or private mediators may however establish and implement specialized or differentiated systems for these cases where careful screening has determined that they are preliminarily appropriate for specialized mediation. The Courts and these processes must work together to provide for court directives (including orders of custody, leaving access to be determined in the mediative process), protection orders, shuttle mediation, protected access and egress and conditions precedent to mediation related to financial disclosure, participation in specialized counseling programs and representation by counsel
8. Finally, the professional practice of marital dispute resolution in the context of domestic abuse should require training and certification of intake staff, mediators, arbitrators, lawyers, guardians ad litem, court personnel and the judiciary.
(Ibid, pp. 23-30)

ONTARIO ASSOCIATION FOR FAMILY MEDIATION ABUSE POLICY AS CONTAINED WITHIN IT SCODE OF CONDUCT FOR MEDIATORS

As indicated above, this policy was promulgated based on the Report from the Toronto Forum on Women Abuse and Mediation (1993) in the same year. The central premise of this policy, is a reflection of the concerns raised with respect to mediation in cases where abuse is a factor. Rather than adopting a zero tolerance screen-out policy, the policy adopted was based on the rebuttable presumption against the use of mediation and rebuttable only if parties to mediation are able to negotiate safely, voluntarily and competently in order to reach a fair agreement. Further, “if the level of domestic violence is sufficient to jeopardize a party’s ability to negotiate without fear or duress, the case should not be mediated. The criterion should be the victim’s ability to participate effectively.” (“Domestic Violence Policy: Lessons Still to be Learned”, Barbara Landau and Niki Landau, http://www.coop-solutions.com/domestic_violence_doc.html, p.2)

Other features of the OAFM policy include:
-separate, pre-screening
-ongoing screening
-the issue of voluntariness is critical
-strong encouragement to obtain legal representation and consultation prior to commencement of mediation and prior to finalization of any agreement
-mediators must be knowledgeable about abuse including nature, extent, impact on victims and children, effective screening techniques, implementation of safety measures and safe termination, and sensitivity to cultural, racial and ethnic differences relevant to domestic violence
-mediators must be able to meet standards of safety, voluntariness and fairness and never be neutral about violence or safety
-mediators have a positive obligation to report past or present child abuse or threats of future abuse to any of the participants or collaterals.

CONCLUSION

In conclusion, the writer highlights a number of concerns discussed throughout the literature which include:
- outside coercion and pressure with respect to mediative processes borne out of systemic problems particularly in provincially funded, court connected mediation, assessment and other community services. With particular regard to the mediation, and further a specialized process, this process requires time and resources and cannot be effective nor more importantly provide the safeguards required without either. Time is necessary for obtaining a history, screening, planning and implementing safeguards, addressing power imbalances and finally the design of an appropriate agreement or failing which, the effecting of a safe termination. Time is particularly important at the beginning of the process when it is being determined whether parties are participating voluntarily, are able to make informed decisions free from duress and in a SAFE environment. There is no compromise or the process is compromised and from that flows risk to the safety of the parties and their children.
- cuts to Legal Aid Programs nationwide and the stringent application of financial criteria without regard to personal circumstances have deprived victims of legal representation which is critical and has led many of the victims to feel as though they have no option but to participate in an alternative process where disclosure of abuse is often not made or the practitioner or process itself is not designed to ensure that parties are informed and safe and that outcomes are fair and appropriate.
- there is an urgent need for training and education for all members of the professional practice of marriage dissolution to address questions of voluntariness, power imbalances, informed consent, presence of threats and coercion and the further training and knowledge of abuse, its dynamics and the consequences that flow therefrom.

The concerns raised within the context of marital dissolution or family practice are issues which should be of concern and looked at from a global perspective by the legal community, the government and our community as a whole. As Barbara Landau points out, these issues, voluntariness, equal bargaining power, informed consent, presence of threats/coercion, are issues which are relevant to harassment cases, elder abuse, employee-employer, victim-offender and international or community disputes between groups and/or between individuals with unequal bargaining power. (“Domestic Violence Policy: Lessons Still to be Learned”, Barbara Landau and Niki Landau, http://www.coop-solutions.com/domestic_violence_doc.html, p.3)


Salem , Milne and Koeffler, at p. 39 (Ibid) conclude with what is, in the writer’s view the strongest argument for advocating a differentiated process for high conflict family cases where abuse or other power imbalances are present:

You can also help your client identify her needs and interests, empower her by encouraging her to advocate for herself, and help her make informed decisions. This may be the first time the victim has felt she had options and choices, which are empowering. Having the options to mediate or not and to accept or reject a proposal are basic principles of mediation.

The right to choose should be a basic and well-accepted principle. Those who advocate that mediation or alternative processes are not appropriate where abuse is a factor take that choice from the victim, further disempowering her, reinforcing her low self-esteem, supporting the status quo that she cannot or should not make decisions for herself. The advantage of a specialized or differentiated approach is that it does not take away the right to make decisions that the victim feels are best for the victim and the children.

One further principle should be kept in mind when dealing with any conflict, but particularly high conflict cases. Mediation without agreement, can still be a success. An agreement is not necessarily resolution, and the parties may still walk away with notable benefit. This process is about dealing with conflict. If by participating in the process, the parties walk away knowing that their conflict has been moved along a constructive path, this is success. If the parties walk away having learned constructive, productive and safe ways to deal with conflict, the process is successful. Further, the parties may gain a clearer perspective of each other’s interests and perspectives, issues may be clarified and the parties are humanized and perhaps a partial agreement is reached or at minimum where a good faith effort has been made, greater benefit may be derived when the return to the process later in the trajectory of their dispute. (Deutsch p. 525, 538) The agreement is important but it should not be the ultimate goal. The key to the success of an agreement is that the parties are able to keep it. Being able to manage what is likely to be at times, continued conflict, will be essential to the maintenance of the agreement. A credible process conducted in an impartial manner can be extremely valuable to the disempowered. Unfortunately, as Bernard Mayer describes, (p. 25), this process is simply an attempt to help the parties “find a Band-Aid to stop the bleeding”…help them survive…and that is always better than the alternative.