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Court-Based Mediation of Cases Involving Parties with a History of Domestic Violence Abuse

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Court-Based Mediation of Cases Involving Parties with a History of Domestic Violence Abuse Necessary Mediation Precursors Capacity Voluntariness Capacity Typically ... – PowerPoint PPT presentation

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Title: Court-Based Mediation of Cases Involving Parties with a History of Domestic Violence Abuse


1
Court-Based Mediation of Cases Involving Parties
with a History of Domestic Violence Abuse
2
Necessary Mediation Precursors
  • Capacity
  • Voluntariness

3
Capacity
  • Typically thought of as the ability of the party
    to discern the nature and reason for the
    dialogue.
  • Generally comes into consideration in cases
    involving the mental health of the potential
    client, or in cases of intoxication or incapacity
    due to drug use or alcohol abuse.

4
Voluntariness
  • Mediation can never be forced while dialogue can
    be ordered to occur, the roots of mediation go
    beyond mere negotiation or mandatory settlement
    conference. Mediation involves facilitated
    dialogue for the sake of creating more effective
    dialogue. Parties cannot be forced to speak
    effectivelythat desire must emanate from the
    parties themselves.

5
Probable Cases for Referral to Mediation
  • Referred by judges in family court.
  • A Judicial officer knowledgeable in the
    principles of mediation may have a greater
    propensity to refer parties to the process who
    have a protracted relationship over time, as
    well as those with a high probability of
    continued interaction (irrespective of any court
    orders to the contrary).
  • Purpose of mediation is not to dialogue or
    negotiate about the domestic violence issue
    itself.
  • Parties have other issues before the court,
    including temporary restraining order requests,
    custody or visitation issues, juvenile welfare,
    parenting plans, etc.

6
Common Trends of Thought Amongst Mediators
  • Mediation involving parties with a history of
    domestic abuse necessarily involves experienced
    mediators with advanced knowledge of domestic
    violence issues.
  • Any court considering a mediation Program should
    begin with a discussion between all personnel
    likely to be involved in the mediation process.
    Topics discussed should include
  • California Evidence Code as to mediator
    confidentiality ( 1119 et. seq.)
  • Safety risks and issues.
  • Screening for, identifying, and managing domestic
    violence, power, control, and intimidation issues
    amongst families.

7
Current Discussion Issues
  • Screeninghow much is needed, who does it, and
    what are we screening for? (Voluntariness)
  • The mediators Hippocratic oath.
  • Risks of violencewho knows better? (Capacity)
  • Shuttle diplomacy or joint session?
  • Power imbalanceis it a problem, and if so, whos
    problem is it?
  • Success in mediationmonitoring the fairness
    or safety of a mediated agreement.
  • Mediation neutrality as condoning perpetrators
    behavior.
  • Confidentiality and the Tarasoff Issue What
    duties exist? What duties are perceived? (42 Fam.
    Ct. Rev. 641 )
  • Does the forward orientation in the mediation
    process avoid a discussion of past sins?

8
ScreeningHow
  • Types of screening procedures may include
  • Private, in-person screenings.
  • Telephone screenings.
  • Written questionnaires.
  • Consultation with referring judges or family
    court coordinators/advocates.
  • Checking with court records for prior or current
    restraining orders and criminal filings.
  • On site (in hearing) screenings by judges.

9
ScreeningWho
  • Possible screeners include the following
  • Court-connected family court services staff.
  • Self Help Clinic staff.
  • Family Law Facilitators Office staff.
  • Other court staff.
  • Private mediators when a private mediator panel
    is used.

10
ScreeningWhat for?
  • Voluntariness, Coercion, and Undue Influence

At a bare minimum, mediators need to be aware of
factors, cues, and communication techniques (both
verbal and non-verbal) between the parties
whereby one party may not be in a position to
elect (voluntarily) whether to participate in the
mediation or not, based upon the actions or
influence of the other party. The mediators
basis for safely determining the probable
(requisite) voluntariness of both parties is by
utilizing shuttle diplomacy and reality testing
techniques, and by spending a good deal of time
in convening.
11
Parties Opting to Mediate Against the Opinion of
the Mediator
In screening and convening, a victim of domestic
violence abuse manifests the desire to
participate in mediation contrary to the opinion
of the mediatorWhats wrong with this picture?
  • Mediators have an unwritten Hippocratic oath to
    do no harm to their clientsbeginning a mediation
    with a party in perceived harm violates this
    moral/ethical duty.
  • On the other hand, by removing the prospect for
    mediation from a victim of domestic violence
    (even when motivated by the desire to be a
    vigilant vanguard for the victims safety), the
    mediator may be re-victimizing the victim by
    replicating the power dynamic of a domestic
    violence relationship in essence saying, You
    cant mediate, because I know whats good for you
    better than you do. You dont have the CAPACITY
    to make a decision VOLUNTARILY.

12
Options
  • In California, the mediator may terminate the
    session (CA Evidence Code 1125).
  • The mediator may proceed under a shuttle
    diplomacy model.
  • The mediator may proceed in a joint session.

13
Shuttle Diplomacy or Joint Session?
  • Shuttle Diplomacy Model
  • A mediation conducted solely through caucused
    session is inherently less effective in
    particular respects, than a joint session,
    because the parties dont receive the benefits of
    non-verbal communication, eye contact, trust
    creation, etc. However, if safety of the parties
    is an overarching concern, caucus may be the only
    tool available to allow the parties to have any
    type of facilitated dialogue.

14
Joint Session Model
  • If the immediate safety of a (victim) party (or
    the mediator) is not compromised by being in the
    same room with the second party (perpetrator),
    even if the mediator believes there may be
    adverse long term consequences with respect to
    the decision to mediate jointly, the individuals
    right to elect a course of action about whether
    to participate in mediation arguably should not
    be taken away. This is consistent with one of the
    principle tenets of mediationparty empowerment.

15
Balance of Power
  • A common misnomer is that a mediators role is to
    balance the power between participants. This
    perception is not only inaccurate, but impossible
    to change vis-à-vis many party dynamics (think
    parent youth mediation). Instead, the mediators
    role is to ensure that each party is heard and
    understood. When it becomes apparent to a
    mediator that one party is utilizing power over
    the other to some advantage or gain, the
    mediators role is not to prevent this
    occurrence, but rather, to utilize tools to make
    the party aware of the dynamic, and to reality
    test any decisions or agreements that are reached
    so that both parties can make absolutely informed
    decisions. At the end of the mediated session,
    the decisions must be theirs otherwise, nothing,
    including court orders, can prevent the parties
    from engaging in desired behavior.

16
Success Fairness
  • FAIRNESSIn the context of a mediation with
    parties involved in abusive relationships, the
    mediators desire to balance power may lead the
    mediator to interject his/her opinion as to
    whether the terms of an agreement are appropriate
    or fairthis leads to a loss of impartiality.
    Invariably, a mediator with this desire will
    begin to push and guide the parties either into,
    or away from the agreements they would be
    inclined to reach of their own accord.
  • SUCCESSMediators dont define successful
    mediation sessionsthe parties doMoreover,
    success is not necessarily tied to reaching
    agreement in the outcome. The achievement of
    party objectives, and the parties satisfaction
    are the only relevant factors of success.

17
Mediator Neutrality Does it Implicitly Condone
Violence?
  • Some mediators believe that use of neutral
    language in the mediation of DV cases, e.g., not
    referring to parties as victim or perpetrator but
    rather, the other party, may go too far in
    conveying an implicit message of acceptance
    regarding the presence of abuse. While there is
    some possibility that in failing to convey
    judgment towards the perpetrator, the victim may
    feel increased sensitivity or emotion about the
    mediators validation of both sides
    perspectives. Nonetheless, the alternative,
    whereby a mediator does somehow admonish the
    behavior, will absolutely result in the loss of
    good faith participation by the (perpetrating)
    party.

18
Confidentiality and Tarasoff
  • While many mediators have argued (see e.g. 42
    Fam. Ct. Rev. 641) in favor of extending the
    duties of the Tarasoff case to mediators,
    ultimately requiring the mediator to breach
    mediation confidentiality in cases of threatened
    or perceived imminent harm to another, current
    California law does not legally allow for such
    revelations.
  • The California Evidence Code currently stipulates
    that mediation in civil matters shall be
    protected from discovery, leaving the door open
    to the possibility of a mediator being subpoenaed
    as a witness in a criminal matter. The
    requirement to answer a lawfully served subpoena,
    however, does not create an exception, as many
    mediators would like to believe, for issues such
    as proactively reporting child or elder abuse, or
    threats of imminent danger against others.

19
Discussion of Past Sins
  • While the mediation process is deliberately
    forward looking, a purging of past events from
    the perspective of each party is an essential
    element of the process. Without this cathartic
    discussion of past perceptions, parties will be
    unable to get beyond those hurtful and emotional
    encounters, and will be unable to brainstorm
    mutually agreeable solutions for their future
    relationship. Therefore, while the purpose of
    these purported mediations is not to mediate the
    domestic violence, mediators and court personnel
    should be aware that all manner of conversation
    may occur when the door is opened. Therefore,
    proper preparation and consideration of the
    salient issues, as well as conversation amongst
    all staff, is a necessary precursor to the
    undertaking of these cases.

20
Questions
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