Barbara Landau & Niki Landau

We are writing in response to a recent report entitled “Abused Women in Family Mediation: A Nova Scotia Snapshot”. This report consists of the narrative stories of 34 women interviewed individually, as well as 59 women who participated in discussion/focus groups. These stories are disturbing and should serve as a wake-up call to all mediators and other professionals in the justice system who think that the issue of domestic violence has been adequately addressed. We can all learn from the experiences of abused women and apply these insights to improve training standards, the criteria for referral and screening, the conduct of cases where safety or intimidation are factors and alternatives when mediation is not appropriate.

Our purpose in this article is to underline many of the concerns raised in this study and to encourage family mediators, judges and lawyers to recognise the limitations of both mediation and the present justice system in addressing the concerns of abuse survivors. We will highlight areas of agreement and raise concerns about one of the report’s important recommendations. These issues have implications far beyond family disputes and deserve consideration in all cases where parties are in a power imbalance and procedural safeguards are not in place.

The report highlighted a number of concerns that should be addressed, namely:

  • Judges who referred parties to mediation, or conducted mediations themselves despite full knowledge of abuse allegations, protective orders, charges and/or convictions, or who encouraged mediation even after mediation screening revealed violence or fear of violence.
  • Inconsistent screening for abuse issues by mediators and conciliators. Many women did not recall any screening for abuse or control, or being questioned at all about the history of their relationship.
  • Mediators who did screen, but did not inquire about the full extent of abuse. That is, they did not ask about psychological, sexual, or economic abuse, stalking or other forms of power and control.
  • Mediators who did screen, but did not screen out cases in which women stated that they could not negotiate safely, fairly or without intimidation. For example, women whose partners who were suffering from serious (untreated) mental disorders, or cases in which women reported harassment, control or emotional abuse, in the absence of physical abuse.
  • Mediators who did not appear to understand the dynamics and cycle of abuse and who rarely offered to modify the mediation process (for example by offering shuttle mediation), who did not employ power-balancing techniques ( for example asking the woman if she would feel more comfortable with a support person or her lawyer present), did not introduce safety measures (for example asking the abuser to arrive first and leave last to reduce the possibility of stalking or intimidation immediately before or after sessions).
  • Mediators who were aware of abuse failed to protect women by revealing information that could jeopardise the safety of women and their children.
  • Mediators who were aware of abuse and did not discuss the disadvantages of mediation or offer alternatives, including other community resources that might have been more appropriate for both parties.

Many other examples were given, but it is clear that the women who were interviewed did not feel that their concerns about negotiating with an abusive or controlling partner were properly addressed by the judiciary, mediators or at times by their legal counsel.

The report contained a number of recommendations with respect to screening, training and accountability, voluntariness and informed choice, access to legal advice and support persons and contained specific recommendations from various cultural groups. These recommendations echo many of the conclusions reached in the “Report from the Toronto Forum on Women Abuse and Mediation” published in 1993. This Report was the catalyst for the abuse policy unanimously adopted by the Ontario Association for Family Mediation as part of its Code of Conduct for mediators the same year. Copies of both Reports (in addition to the Nova Scotia Report) can act as an important reference for provinces that have not as yet developed a detailed policy framework.

We have summarised below some of the key provisions. It is important to note that there is one significant difference in the conclusions reached in the Ontario and Nova Scotia reports. We will address this difference first. In the Nova Scotia report, the recommendation was that women and partners of women who report abuse, including emotional, psychological, sexual, and financial as well as physical abuse, should be screened out of mediation by conciliators and mediators. Screen-outs based on reported abuse should take place on a zero-tolerance basis by intake workers, conciliators and mediators. Decisions about participation should not be left to the discretion of either legal party.

In Ontario the central premise of the abuse policy reflected the same concerns about mediating in cases of abuse. However, rather than a zero tolerance screen-out policy, the conclusion reached was that where abuse or control issues exist, there should be a rebuttable presumption against the use of mediation. This presumption could be rebutted only if both parties met the following considerations “Parties to mediation must be able to negotiate safely, voluntarily, and competently in order to reach a fair agreement. If the level of domestic violence is sufficient to jeopardise 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.”

An important distinction is that victims were given the opportunity to rebut the presumption against mediation if they wanted to choose mediation and if BOTH parties could satisfy the mediator that they had the capacity and willingness to mediate safely and without duress. In such cases, screening would be ongoing, independent legal advice would be a prerequisite and a specialised process that focused on a safe environment would have to be offered. Also the right to have a support person present would be discussed. The advantage of this approach is that it does not take away an abused woman’s right to make the decisions that she feels are best for her and the children.

Some other important features of the OAFM policy include:

  • “Prior to commencing mediation, all clients should be screened (separately) for any occurrences of abuse to determine which cases are inappropriate for mediation, which require additional safeguards, in addition to or instead of mediation, and which should be referred to other resources.”
  • “Screening should continue throughout the mediation process.”
  • “The issue of voluntariness is critical when it comes to creating a safe place for couples to meet and negotiate.”
  • “Clients should be strongly encouraged to consult with attorneys prior to mediation and certainly before an agreement is finalised.”
  • “Mediators must be knowledgeable about abuse” and the training should include:
  • – physical and psychological abuse and its effect on family members
    – the impact on children, including witnessing abuse
    – effective techniques for screening, implementing safety measures and safe termination
    – appropriate resources, in addition to or instead of mediation
    – sensitivity to cultural, racial and ethnic differences that are relevant to domestic violence and may have an impact on mediation
  • “Where a decision is made that mediation may proceed, mediators need to meet standards of safety, voluntariness, and fairness. When mediators have concerns, they should inform their clients that they are not neutral about violence or safety. Mediators should inform clients that they have a positive obligation to report past or present child abuse and threats of future abuse to any of the participants.”

The policy then sets out a number of ‘Procedural Guidelines” for cases in which mediation does proceed.

In addition to the concerns already raised, we believe that a more systemic problem faces provincially funded, court connected mediation services. That is, there is pressure to conduct the mediation quickly, without allowing the time necessary to obtain a proper history, screen for violence, control, and power imbalances and then to design a process that meets the clients’ needs. It is not possible to conduct safe, responsible mediation unless there is time to determine, in separate interviews, whether parties are participating voluntarily and are able to make informed decisions, in a safe environment, free from duress.

Also, the cuts to legal aid have meant that women often feel they have no choice but to proceed with mediation, since it is often less expensive than independent legal advice and litigation. In cases where there is a financial need, particularly when abuse is an issue, legal aid should be readily available to ensure that all parties are informed and have an advisor to review what processes and outcomes would be fair and appropriate.

For mediators who practice in areas other than family law, many of these issues are relevant when there are questions about voluntariness, equal bargaining power, informed consent, or the presence of threats or coercion. Similar concerns and a need for training and procedural safeguards exist in such applications as harassment cases (including sexual harassment), elder abuse, employee-employer, victim-offender, and international or community disputes between groups with unequal bargaining power. The report from Nova Scotia is a timely reminder that we need to continually review our policies and practices in the interest of the parties we assist.

Notes re Authors:

Dr. Barbara Landau, President of Cooperative Solutions, is a lawyer, psychologist, mediator and trainer who specializes in family and workplace disputes and is past chair of the Domestic Violence Committees of the Ontario Association Family Mediation and the Academy of Family Mediators.

Niki Landau, Training Coordinator at St. Stephens Community Mediation Centre, is a trainer, mediator and actor, who participates in Family Mediation, Domestic Violence and generic mediation training programs.

This article was originally published in the Summer, 2000 issue of Interaction.

March 28, 2016
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