MEDIATION AND DOMESTIC VIOLENCE
© by Rose Garrity
What Domestic Violence Looks Like
Domestic violence is a common problem in our society, affecting up to fifty percent of all heterosexual relationships; twenty five percent of all women partnered with men are beaten regularly. Ninety five percent of all domestic assaults in heterosexual relationships involve men attacking women. Men are socialized in this culture to expect to be in control, especially in their relationships to women. The family is often still seen as a man's private world to control as he sees fit. Men batter to maintain their control and their power... and because they can; it is effective; it gets them what they want.

Domestic violence is a pattern of behavior  in a relationship, as perpetrated by one partner against the other; it includes physical violence as well as emotional abuse, economic coercion, isolation, sexual abuse, threats and intimidation, use of the children, verbal abuse, damaging or destroying property, killing and abusing pets, and other forms of terrorism. Domestic violence is, therefore, not any particular, discrete incident or incidents, nor is it a dispute or conflict. It is never not present as a factor, once a partner has been intimidated, terrified, threatened, coerced, beaten, slapped or otherwise put on notice by the abuser of his intent and capability to control her.

The actual use of force or threat to get what the abuser wants is needed far less often than others might imagine. A simple look or gesture, usually imperceptible to others, is often all it takes when the pattern is present to alert the target/victim that the abuser is exerting a demand or signaling a warning, or "anger". Actual physical abuse is often but a small part of the pattern of control and domination. Some abusers never use physical violence directly against the victim, or use violence only once, relying on that threat to control their partner thereafter (but all physical abusers use many, many other tactics.)

The victim of abuse walks in fear through every day, even when appearing to be calm and safe. The continual threat of the repetition of abuse functions to keep a  victim controlled, as do "reminder" incidents, such as smashing a wall, threatening a relative or child, breaking a victim's possessions or talking about suicide, all while invalidating the victim in dozens of subtle and overt ways. An abuser's behavior is, despite common misunderstandings to the contrary, very controlled and calculated to get him exactly the results he wants. Abusers are very different in their intimate relationship from how they appear to others, and we cannot safely deal with them based upon appearances; they lie, deny, minimize and hide their abusive behavior very creatively.

Meanwhile victims of abuse may appear to others to be "too compliant"......., returning to the abuser when an outsider feels that in the same situation he or she never would, "irrational".........., stating fear of consequences an outsider believes to be extremely unlikely, or racing through a disjointed and non-sequential series of descriptions of the abuse and her options or lack of options, to have "low self-esteem", "difficult" personalities, even mental health problems; usually all of these things are absolutely normal responses to ongoing abuse and terrorism. They are
doing what they must to protect themselves and their children, to comply with coercion and threats or to reignite the abuser's affection or rewarding treatment.

The abuser, on the other hand, often exhibits a charming and "rational" appearance, accommodating requests from authority figures with quiet competence, appearing altogether to be the "reasonable and functional" one of the pair.

Dangerous Interventions

The most powerful force in the relationship is the victim's fear of the abuser. It is the factor that controls what the victim does, the choices she makes and the responses she exhibits to the abuser, and to systems professionals.

Unless we understand this fear and the power it exerts we cannot provide any intervention safely or effectively around any issue in the relationship. Unless we understand the abuser's behavior as a choice he makes for which only he can be held accountable we do a grave injustice to the victim of the abuse.

Providing any intervention that gives hope to the victim without sole accountability of the abuser is almost certain to revictimize her. Abusers routinely try to convince their victims that they are "trying to change" and that she "must help" him to do it; this is one of the most insidious methods used to maintain control over her.

The power and control desires of the abuser drive all of his behavior choices. He coerces, manipulates and invalidates the victim to continue his access to the benefits of the relationship for him. Only interventions that hold him accountable and give him clear consequences for his behavior can address his belief in his right to control and own his partner.

Should We Mediate Domestic Violence?

Is mediation ever appropriate to resolve any of the issues between persons where domestic violence has been perpetrated? There are many who believe that mediation is a viable and reasonable tool for resolving disputes, and who include domestic violence cases as "disputes" which can and should be addressed with mediation. Many practitioners believe that while they cannot mediate the violence  that they can mediate other issues, such as custody, visitation and property settlement. Proponents of using mediation say that mediation is "one tool among many" that may be used, that mediation encourages cooperation instead of litigation, community building instead of adversarial proceedings, empowerment instead of being made spectators in a court process.... in short that it is "restorative justice", instead of "retribution justice".

All well trained mediators know that we cannot mediate violence. Do we accept the idea that domestic violence is "escalation of conflicts"? Not all of us choose to use violence to address conflict; much violence occurs with no stimulus. The use of violence is always separate from the
issue of conflict resolution.  But in addition it important to understand that mediating any situation between partners where abuse has been perpetrated is mediating violence, because any negotiation between the partners for any reason is a subject of the abuser's terrorism. Perhaps it
would be helpful to think about mediation in other situations. Would we mediate an issue between a rapist and his 14 year old victim? Between a father and the 10 year old child he sexually abused for several years? Between a terrorist and a hostage?

Criteria For Help

Helpful and safe domestic violence interventions look to expand the victim's locus of control. Any imposed or authoritative intervention that keeps her powerless or even increases her powerlessness is a travesty of justice. When we find creative ways to transfer knowledge, skills or resources to the victim we give her back some control; we give her ownership of the course of action. When we impose a course of action that we own, be it mediation, couples counseling or other endangering interventions that collude with the abuser we contribute to her abuse.

The limits of our approaches and helping skills, and the harms we perpetrate by insisting upon some of them in the face of evidence we should do otherwise is an area that deserves honest scrutiny. One test of interventions is to ask whose position will be strengthened by them and whose resources or options will be limited or increased by them.

Why Mediation Is Not Appropriate

To use mediation is to subscribe to the mistaken idea that abuse is related to "misunderstandings" or lack of communication. If discussion and compromise, the mainstay of mediation, could help in any way most domestic violence situations would be long ago resolved because victims of abuse "discuss and compromise" constantly. Mediation assumes both parties will cooperate to make agreements work; the victim has always 'cooperated' with the abuser; the abuser never cooperates.

Mediation can be and is ordered by judges/courts, as can counseling and mental health evaluations. They are tools in the abuser's arsenal to be used against the victim as often as he  chooses. In order for mediation to work and to not make situations worse the parties involved must have equal power and must share some common vision of resolution. This is clearly not present when domestic violence has taken place in a relationship.

Mediation practitioners must be alert to the need to interview partners separately with specially designed questions in order to determine if abuse is or has been present. Many domestic violence professionals can train others to screen safely for domestic violence. To not do so risks unsuccessful mediations, at best, and increasing the victim's danger by colluding with the abuser, at worst.

A person who has been terrorized by an abuser is not free to participate in a mediation process with him, even if the mediator(s) assume or believe that they "understand". Being truthful about any of her needs or experiences in the abuser's presence or proximity practically ensures that she is in more danger later.

The mediator is left with a no win: either the victim's danger is increased, or she is not fully or truthfully participating, or both. The well meaning mediator may actually encourage the victim to feel safe enough to share information that could seriously compromise her safety. In any case the whole intent of mediation is lost.

To engage an abuser and a victim in a process that implies equal responsibility is damaging to both. The victim is once again made to feel responsible for the abuser's behavior, and the abuser is allowed to continue to not accept full responsibility for his behavior choices.

What Mediators Must Know

Mediation practitioners should learn to seek guidance from domestic violence professionals in handling any cases where abuse is a factor, and should be accountable to battered women and
domestic violence advocates to ensure the safety of victims and the efficacy of mediation programs in making proper decisions and referrals in cases where domestic violence is an issue.

Mediated agreements can be incorporated into a court order in some states, and are often  considered legal contracts. Parties may participate voluntarily in mediation, or they may be ordered by the court to participate.

Mediation saves criminal legal systems great amounts of money; in systems where burgeoning case loads are backed up for weeks and months awaiting court action mediation may be seen as a panacea, especially for domestic violence cases which continually clog the system. Prosecutors and judges routinely refer domestic violence cases to mediation in many areas. Mediation can also save litigation costs for the parties involved.... another attractive feature that lures many to agree to mediation. Mediation, however, not only fails to provide safety for victims, but can help to perpetuate their victimization.

Mediation asks parties to agree on behavior they will honor and practice in the future. Every battered woman and every domestic violence advocate knows, perhaps better than they know anything else, that an abuser will promise or agree to anything to retain his control and power, but will honor his agreements only when it suits his purposes. Mediation becomes just one more tool for him to use against the victim; he uses the system against her at every turn, and does it very effectively.

To ask and expect the victim to modify her behavior in response to the abuser's tactics around any issue in their relationship puts equal responsibility for his abuse on her, and it is an extension of her daily life with him, where she is expected to modify her behavior to avoid his abuse, (and we know that  rarely does  any change she makes have any effect on his behavior).

Moving To Understanding

The field of professionals addressing domestic violence understand, after many years of practice, service, research and other experience, that the only safe and effective approach to domestic violence is to hold the abuser totally accountable, with every part of the system which touches them giving the clear and nonnegotiable message that he is solely responsible for the abuse he commits, and that he will be held accountable. He must get the consistent message that society will simply not tolerate his abuse. ("Zero Tolerance" is the slogan being used more and more in many jurisdictions in response to abuse).

The safety of the victim must be the first priority in every intervention from any part of the system. This means addressing the concern in all immediate interactions as well as understanding the long term impact on her safety as a result of anything we do now.

It seems clear that those who advocate the use of mediation for any aspect of domestic violence cases do not see abuse as a very serious crime, at least not as serious as assault between strangers, and that they see partner abuse as simply a "symptom" of a "problem relationship". In fact abusers use their physical strength and position of perceived authority as "the man" to control and dominate their partners and to perpetuate their pattern of abuse. (This frequently escalates to more and more dangerous levels of violence, and even to murder).

Who Should Judge Safety?

Who then should make the decision regarding whether mediation should be used in any given situation? Only the victim can really know how frightened or powerless she feels in the presence of her partner. While some may not articulate this sense it is often because no one has ever given them the language or the right to do so! Domestic violence advocates are vital links in the process of these decisions and assessments.

While mediation appears to be a safe, humanitarian, non-adversarial, inexpensive way to intervene in many situations, the best way to protect the rights of victims who are in unequal and dangerous relationships to their abusers is to engage in adversarial proceedings which can punish or deter criminal conduct. Until recently these proceedings were largely unavailable to battered women; increasingly states and local jurisdictions are recognizing the importance of coordinated community responses to domestic violence. Abusers are then held accountable across the spectrum of system interventions, while the safety of victims is protected. It is simple to see that mediation does not fit this criteria.

The goals of mediation, which include reaching agreement, reconciling the parties, recognizing mutual responsibility for the problem, and keeping cases from the court system, are at the core
incompatible with the goal of stopping abuse. Mediation allows abusers to continue to blame the victim for the abuse, and contributes to the victim blaming herself, rather than empowering her to access her rights and options for safety and justice. Mediation can also prevent formal charges or
justice system interventions that are entirely appropriate in  many cases serious enough to warrant criminal charges.

Other Problems With Mediation

Mediation is conducted in private where there can be no assurance of accountability around what occurs there. Mediators, often volunteers, are not monitored in any public way and the integrity and consistency with which they handle cases cannot be insured.

Mediation is a time-limited intervention, usually limited to one session to each case; even if the intervention were appropriate the abuse would have to be handled so superficially as to be totally meaningless. Often no private hearing occurs for the parties, with the case heard entirely in the presence of the other party. Advocates are not present for the parties, and sometimes women are even prohibited from having an attorney present. (A trained domestic violence advocate would be more likely than the battered woman to identify and stop inappropriate mediation of issues related to the abuse.)

Any mediated agreement that addresses abuse or other issues when abuse is also present risks supporting abuse: if a contract is predicated upon an abuser's agreement to not abuse or control it must be countered against the victim's agreement to do or not do something. If she "fails" to live up to her agreement he then, in effect, has permission to abuse her.

When we recognize that even strongly worded court orders fail to stop abusers from re-offending, and even killing victims it becomes readily apparent that any agreement or discussion by a mediator about any issue in their relationship can only aggravate an already very dangerous situation, at worst, or cover the efforts of an abuser to control and coerce at best.

Justice And Accountability

Domestic violence must be prosecuted in public, as the public offense that it is. To relegate any aspect of it to a private process like mediation is to silence the victim as seriously as has been done for generations prior to the current understandings, laws and interventions. Justice must be an overriding concern; the criminal legal system can mete out justice. Mediation cannot.

Because most mediation programs are funded on an annually renewed basis and must prove effective to retain financial and court support there will be much temptation to judge interventions effective that are in fact damaging. This is exactly the opposite of justice. This is not representative of accountability to victims or fairness. This is one more way that safety is further compromised and danger is potentially escalated.

Conclusion

Mediation can only work if a change in attitudes or perceptions can solve the issue, if the issue is truly a disagreement or conflict, if power is equal between the parties, if no punishment or legal consequence is needed, and if both parties are capable of carrying out the agreement.

Relationships between abusers and victims are full of power imbalances. In general, men have economic power, physical power, and societal power. These facts further erode the ability for victims to negotiate on equal footing with their abusers.

Mediation is not enforceable and engenders no follow-up. Mediation is private; domestic violence is a public issue requiring public prosecution by public officials.

The mediation or dispute resolution program that cares about justice, fairness and safety will carefully avoid mediating any issue between parties where domestic violence has been perpetrated. Any remaining questions may be addressed to your state coalition against domestic violence; many have position papers and other materials available on this issue, and many train court administrators and dispute resolution administrators to identify and respond safely and appropriately to domestic violence.



© March 1998

FOOTNOTE: This paper is not one individual’s thoughts or philosophy, but is based upon knowledge gleaned by the battered women’s movement over a course of twenty five years. Barbara Hart in particular has been at the “cutting edge” of issues like mediation, and has helped to articulate these concerns for all of us. I wish to acknowledge her influence on the development of my understanding. I wish also to acknowledge the leadership and influence of Susan Schechter, Beth Richie, Ellen Pence and other  foremothers of the movement on the process of  learning and furthering understanding of battered women’s realities.

Author Rose Garrity has been a domestic violence advocate and trainer for over twenty years. She is the Executive Director of a domestic violence and rape crisis center in a rural county of New York State. She is also an experienced mediator, having worked closely for many years with a court-system- sponsored dispute resolution center. She has written widely on the issues of domestic violence and sexual assault, and is a trainer and activist around issues of violence, oppression and cultural diversity.