Court-Based Mediation of Court-Based Mediation of Cases Involving Parties Cases Involving Parties

with a History of Domestic with a History of Domestic Violence AbuseViolence Abuse

Necessary Mediation Necessary Mediation PrecursorsPrecursors

CapacityCapacity

VoluntarinessVoluntariness

CapacityCapacity

Typically thought of as the ability of Typically thought of as the ability of the party to discern the nature and the party to discern the nature and reason for the dialogue. reason for the dialogue.

Generally comes into consideration Generally comes into consideration in cases involving the mental health in cases involving the mental health of the potential client, or in cases of of the potential client, or in cases of intoxication or incapacity due to drug intoxication or incapacity due to drug use or alcohol abuse. use or alcohol abuse.

Mediation can never be forced; while Mediation can never be forced; while dialogue can be ordered to occur, the dialogue can be ordered to occur, the roots of mediation go beyond mere roots of mediation go beyond mere negotiation or mandatory settlement negotiation or mandatory settlement conference. Mediation involves conference. Mediation involves facilitated dialogue for the sake of facilitated dialogue for the sake of creating more effective dialogue. creating more effective dialogue. Parties cannot be forced to speak Parties cannot be forced to speak effectively—that desire must emanate effectively—that desire must emanate from the parties themselves.from the parties themselves.

VoluntarinessVoluntariness

Probable Cases for Probable Cases for Referral to MediationReferral to Mediation

Referred by judges in family court.Referred by judges in family court. A Judicial officer knowledgeable in the principles of A Judicial officer knowledgeable in the principles of

mediation may have a greater propensity to refer mediation may have a greater propensity to refer parties to the process who have a protracted parties to the process who have a protracted relationship over time, as well as those with a high relationship over time, as well as those with a high probability of continued interaction (irrespective of probability of continued interaction (irrespective of any court orders to the contrary). any court orders to the contrary).

Purpose of mediation is not to dialogue or Purpose of mediation is not to dialogue or negotiate about the domestic violence issue itself. negotiate about the domestic violence issue itself.

Parties have “other” issues before the court, Parties have “other” issues before the court, including: temporary restraining order requests, including: temporary restraining order requests, custody or visitation issues, juvenile welfare, custody or visitation issues, juvenile welfare, parenting plans, etc. parenting plans, etc.

Common Trends of Thought Common Trends of Thought Amongst MediatorsAmongst Mediators

Mediation involving parties with a history of Mediation involving parties with a history of domestic abuse necessarily involves domestic abuse necessarily involves experienced mediators with experienced mediators with advanced advanced knowledgeknowledge of domestic violence issues. of domestic violence issues.

Any court considering a mediation Program Any court considering a mediation Program should begin with a discussion between all should begin with a discussion between all personnel likely to be involved in the mediation personnel likely to be involved in the mediation process. Topics discussed should include: process. Topics discussed should include:

1.1. California Evidence Code as to mediator California Evidence Code as to mediator confidentiality (confidentiality (§ 1119 et. seq§ 1119 et. seq.).)

2.2. Safety risks and issues.Safety risks and issues.3.3. Screening for, identifying, and managing Screening for, identifying, and managing

domestic violence, power, control, and domestic violence, power, control, and intimidation issues amongst families.intimidation issues amongst families.

Current Discussion IssuesCurrent Discussion Issues Screening—how much is needed, who does it, and what are Screening—how much is needed, who does it, and what are

we screening for? (Voluntariness)we screening for? (Voluntariness) The mediator’s “Hippocratic oath.”The mediator’s “Hippocratic oath.” Risks of violence—who knows better? (Capacity)Risks of violence—who knows better? (Capacity) Shuttle diplomacy or joint session?Shuttle diplomacy or joint session? Power imbalance—is it a problem, and if so, who’s problem Power imbalance—is it a problem, and if so, who’s problem

is it? is it? ““Success” in mediation—monitoring the “fairness” or safety Success” in mediation—monitoring the “fairness” or safety

of a mediated agreement.of a mediated agreement. Mediation neutrality as condoning perpetrator’s behavior.Mediation neutrality as condoning perpetrator’s behavior. Confidentiality and the Confidentiality and the TarasoffTarasoff Issue: What duties exist? Issue: What duties exist?

What duties are perceived? (42 Fam. Ct. Rev. 641 )What duties are perceived? (42 Fam. Ct. Rev. 641 ) Does the forward orientation in the mediation process avoid Does the forward orientation in the mediation process avoid

a discussion of past “sins?”a discussion of past “sins?”

Screening—How Screening—How Types of screening procedures may Types of screening procedures may

include:include:1. Private, in-person screenings.2. Telephone screenings.3. Written questionnaires.4. Consultation with referring judges or

family court coordinators/advocates.5. Checking with court records for prior or

current restraining orders and criminal filings.

6. On site (in hearing) screenings by judges.

Screening—Who Screening—Who

Possible screeners include the following:

1. Court-connected family court services staff.

2. Self Help Clinic staff.3. Family Law Facilitator’s Office staff.4. Other court staff.5. Private mediators when a private

mediator panel is used.

Screening—What for? Screening—What for?

Voluntariness, Coercion, and Undue Influence:Voluntariness, Coercion, and Undue Influence:

At a bare minimum, mediators need to be aware of At a bare minimum, mediators need to be aware of factors, cues, and communication techniques (both factors, cues, and communication techniques (both verbal and non-verbal) between the parties verbal and non-verbal) between the parties whereby one party may not be in a position to elect whereby one party may not be in a position to elect (voluntarily) whether to participate in the mediation (voluntarily) whether to participate in the mediation or not, based upon the actions or influence of the or not, based upon the actions or influence of the other party. The mediator’s basis for safely other party. The mediator’s basis for safely determining the probable (requisite) voluntariness determining the probable (requisite) voluntariness of both parties is by utilizing shuttle diplomacy and of both parties is by utilizing shuttle diplomacy and reality testing techniques, and by spending a good reality testing techniques, and by spending a good deal of time in convening. deal of time in convening.

Parties Opting to Mediate Against Parties Opting to Mediate Against the Opinion of the Mediatorthe Opinion of the Mediator

Mediators have an unwritten Hippocratic oath to do no Mediators have an unwritten Hippocratic oath to do no harm to their clients—beginning a mediation with a party harm to their clients—beginning a mediation with a party in perceived harm violates this moral/ethical “duty.” in perceived harm violates this moral/ethical “duty.”

On the other hand, by removing the prospect for On the other hand, by removing the prospect for mediation from a victim of domestic violence (even when mediation from a victim of domestic violence (even when motivated by the desire to be a vigilant vanguard for the motivated by the desire to be a vigilant vanguard for the victim’s safety), the mediator may be re-victimizing the victim’s safety), the mediator may be re-victimizing the victim by replicating the power dynamic of a domestic victim by replicating the power dynamic of a domestic violence relationship; in essence saying, “You can’t violence relationship; in essence saying, “You can’t mediate, because I know what’s good for you better than mediate, because I know what’s good for you better than you do. You don’t have the you do. You don’t have the CAPACITYCAPACITY to make a decision to make a decision VOLUNTARILYVOLUNTARILY.”.”

In screening and convening, a victim of In screening and convening, a victim of domestic violence abuse manifests the domestic violence abuse manifests the desire to participate in mediation contrary desire to participate in mediation contrary to the opinion of the mediator…What’s to the opinion of the mediator…What’s wrong with this picture?wrong with this picture?

OptionsOptions

1.1. In California, the mediator may In California, the mediator may terminate the session (CA Evidence terminate the session (CA Evidence Code Code §1125).§1125).

2.2. The mediator may proceed under a The mediator may proceed under a shuttle diplomacy model.shuttle diplomacy model.

3.3. The mediator may proceed in a joint The mediator may proceed in a joint session. session.

Shuttle Diplomacy or Joint Shuttle Diplomacy or Joint Session? Session?

Shuttle Diplomacy Model: Shuttle Diplomacy Model:

A mediation conducted solely through A mediation conducted solely through caucused session is inherently less effective caucused session is inherently less effective in particular respects, than a joint session, in particular respects, than a joint session, because the parties don’t receive the because the parties don’t receive the benefits of non-verbal communication, eye benefits of non-verbal communication, eye contact, trust creation, etc. However, if contact, trust creation, etc. However, if safety of the parties is an overarching safety of the parties is an overarching concern, caucus may be the only tool concern, caucus may be the only tool available to allow the parties to have available to allow the parties to have anyany type of facilitated dialogue. type of facilitated dialogue.

Joint Session ModelJoint Session Model

If the immediate safety of a (victim) party If the immediate safety of a (victim) party (or the mediator) is not compromised by (or the mediator) is not compromised by being in the same room with the second being in the same room with the second party (perpetrator), even if the mediator party (perpetrator), even if the mediator believes there may be adverse long term believes there may be adverse long term consequences with respect to the decision consequences with respect to the decision to mediate jointly, the individual’s right to to mediate jointly, the individual’s right to elect a course of action about whether to elect a course of action about whether to participate in mediation arguably should participate in mediation arguably should not be taken away. This is consistent with not be taken away. This is consistent with one of the principle tenets of mediation—one of the principle tenets of mediation—party empowerment. party empowerment.

Balance of PowerBalance of Power A common misnomer is that a mediator’s role is to A common misnomer is that a mediator’s role is to

balance the power between participants. This balance the power between participants. This perception is not only inaccurate, but impossible to perception is not only inaccurate, but impossible to change vis-à-vis many party dynamics (think parent change vis-à-vis many party dynamics (think parent youth mediation). Instead, the mediator’s role is to youth mediation). Instead, the mediator’s role is to ensure that each party is heard and understood. ensure that each party is heard and understood. When it becomes apparent to a mediator that one When it becomes apparent to a mediator that one party is utilizing power over the other to some party is utilizing power over the other to some advantage or gain, the mediator’s role is not to advantage or gain, the mediator’s role is not to prevent this occurrence, but rather, to utilize tools to prevent this occurrence, but rather, to utilize tools to make the party aware of the dynamic, and to reality make the party aware of the dynamic, and to reality test any decisions or agreements that are reached so test any decisions or agreements that are reached so that both parties can make absolutely informed that both parties can make absolutely informed decisions. At the end of the mediated session, the decisions. At the end of the mediated session, the decisions must be theirs; otherwise, nothing, including decisions must be theirs; otherwise, nothing, including court orders, can prevent the parties from engaging in court orders, can prevent the parties from engaging in desired behavior.desired behavior.

““Success” & “Fairness”Success” & “Fairness” FAIRNESS—In the context of a mediation with FAIRNESS—In the context of a mediation with

parties involved in abusive relationships, the parties involved in abusive relationships, the mediator’s desire to “balance” power may lead the mediator’s desire to “balance” power may lead the mediator to interject his/her opinion as to whether mediator to interject his/her opinion as to whether the terms of an agreement are appropriate or fair—the terms of an agreement are appropriate or fair—this leads to a loss of impartiality. Invariably, a this leads to a loss of impartiality. Invariably, a mediator with this desire will begin to push and mediator with this desire will begin to push and guide the parties either into, or away from the guide the parties either into, or away from the agreements they would be inclined to reach of their agreements they would be inclined to reach of their own accord. own accord.

SUCCESS—Mediators don’t define successful SUCCESS—Mediators don’t define successful mediation sessions—the parties do…Moreover, mediation sessions—the parties do…Moreover, success is not necessarily tied to reaching success is not necessarily tied to reaching agreement in the outcome. The achievement of agreement in the outcome. The achievement of party objectives, and the parties’ satisfaction are party objectives, and the parties’ satisfaction are the only relevant factors of success. the only relevant factors of success.

Mediator Neutrality: Does it Mediator Neutrality: Does it Implicitly Condone Violence? Implicitly Condone Violence?

Some mediators believe that use of neutral Some mediators believe that use of neutral language in the mediation of DV cases, e.g., not language in the mediation of DV cases, e.g., not referring to parties as victim or perpetrator but referring to parties as victim or perpetrator but rather, “the other party,” may go too far in rather, “the other party,” may go too far in conveying an implicit message of acceptance conveying an implicit message of acceptance regarding the presence of abuse. While there is regarding the presence of abuse. While there is some possibility that in failing to convey some possibility that in failing to convey judgment towards the perpetrator, the victim judgment towards the perpetrator, the victim may feel increased sensitivity or emotion about may feel increased sensitivity or emotion about the mediator’s validation of both sides’ the mediator’s validation of both sides’ perspectives. Nonetheless, the alternative, perspectives. Nonetheless, the alternative, whereby a mediator whereby a mediator doesdoes somehow admonish the somehow admonish the behavior, will absolutely result in the loss of good behavior, will absolutely result in the loss of good faith participation by the (perpetrating) party. faith participation by the (perpetrating) party.

Confidentiality and Confidentiality and TarasoffTarasoff While many mediators have argued (see e.g. 42 Fam. While many mediators have argued (see e.g. 42 Fam.

Ct. Rev. 641) in favor of extending the duties of the Ct. Rev. 641) in favor of extending the duties of the TarasoffTarasoff case to mediators, ultimately requiring the case to mediators, ultimately requiring the mediator to breach mediation confidentiality in cases mediator to breach mediation confidentiality in cases of threatened or perceived imminent harm to of threatened or perceived imminent harm to another, current California law does not legally allow another, current California law does not legally allow for such revelations. for such revelations.

The California Evidence Code currently stipulates that The California Evidence Code currently stipulates that mediation in civil matters shall be protected from mediation in civil matters shall be protected from discovery, leaving the door open to the possibility of discovery, leaving the door open to the possibility of a mediator being subpoenaed as a witness in a a mediator being subpoenaed as a witness in a criminal matter. The requirement to answer a lawfully criminal matter. The requirement to answer a lawfully served subpoena, however, does not create an served subpoena, however, does not create an exception, as many mediators would like to believe, exception, as many mediators would like to believe, for issues such as proactively reporting child or elder for issues such as proactively reporting child or elder abuse, or threats of imminent danger against others. abuse, or threats of imminent danger against others.

Discussion of “Past Sins”Discussion of “Past Sins” While the mediation process is deliberately forward While the mediation process is deliberately forward

looking, a purging of past events from the looking, a purging of past events from the perspective of each party is an essential element of perspective of each party is an essential element of the process. Without this cathartic discussion of past the process. Without this cathartic discussion of past perceptions, parties will be unable to get beyond perceptions, parties will be unable to get beyond those hurtful and emotional encounters, and will be those hurtful and emotional encounters, and will be unable to brainstorm mutually agreeable solutions unable to brainstorm mutually agreeable solutions for their future relationship. Therefore, while the for their future relationship. Therefore, while the purpose of these purported mediations is not to purpose of these purported mediations is not to “mediate the domestic violence,” mediators and “mediate the domestic violence,” mediators and court personnel should be aware that all manner of court personnel should be aware that all manner of conversation may occur when the door is opened. conversation may occur when the door is opened. Therefore, proper preparation and consideration of Therefore, proper preparation and consideration of the salient issues, as well as conversation amongst the salient issues, as well as conversation amongst all staff, is a necessary precursor to the undertaking all staff, is a necessary precursor to the undertaking of these cases. of these cases.

QuestionsQuestions