Written by Jane Wilson, Resolution.

Mediation is often discussed in the context of helping two former partners reach an amicable agreement. Every couple is different, when highlighting the benefits of mediation, assumptions cannot be made about clients’ circumstances.

What if there are more alarming issues in play? Domestic abuse is often cited as a reason not to proceed with mediation – indeed, domestic violence remains one of the factors which exempt someone from attending a MIAM.

In many cases this will be right, and domestic abuse sufferers can be very anxious about the thought of coming for a MIAM or mediation. Yet, handled carefully, and in the right circumstances, mediation can be an effective way of finding a way forward.

It involves thinking about mediation slightly differently. For example, there should be separate MIAMs or intake meetings. Clients need to be screened really carefully to make sure that both would feel able to articulate their views at mediation. There are other things you can, or should, do, such as making arrangements for the domestic abuse sufferer to arrive and leave first. This means that the other party cannot confront them outside the building, bump into them in a reception area or follow them when they leave. The mediation can also take place in separate rooms, with the mediator going between the two.

As a former Chair of Resolution’s Domestic Abuse Committee, and a member of the the FMC Board of Directors, I know the positive role mediation can play, as part of a rounded approach, in making arrangements for some couples where there has been an allegation of domestic violence. It is not for the faint-hearted, but the right training and experience can help you as a mediator provide an invaluable service.

The case study that follows, seeks to demonstrate how mediation can be used in these circumstances.

A case study

M and F have agreed to mediate contact arrangements for their daughter, D aged 4. At the initial separate assessment M said that there was some domestic violence when they were together and once post separation, and on three or four other occasions F kicked his way into M’s property. D was upstairs. D is afraid to go and spend time with F. When there is a noise she will say ‘Is that Daddy trying to get in’. For the last 2 years he has been seeing her at the maternal grandparents home.

This raises issues as to how mediation should take place, the risk to M and D from contact and the appropriate options to explore for future contact.

How should mediation take place?

This will depend on whether the violence was separation instigated violence, situational couple violence or coercive controlling violence.

Separation instigated violence occurs when there are unexpected and uncharacteristic acts of violence perpetrated by a partner with a history of civilised and contained behaviour. It is generally perpetrated by the person being left and involves one or two incidents at the beginning of or during the separation such as lashing out, throwing things, destroying possessions, throwing clothes out or ramming the partner’s car. It is unlikely to occur again.

Situational couple violence mostly arises from conflicts or arguments between the parties. It can be in the past, throughout the relationship or in the months prior to separation. It is less likely to escalate over time than coercive controlling violence.

Coercive controlling violence involves a pattern of emotionally abusive intimidation, coercion and control coupled with physical violence. It can include intimidation, emotional abuse, isolation, minimising, denying and blaming, use of children, asserting male privilege, economic abuse, and coercion and threats (Pence and Peymar 1993).

M should be seen on her own to establish the nature of the domestic violence. If she were to be asked about the details in front of F she would feel in inhibited by his presence and would also be at risk of repercussions from F. She will need to be told that anything she discloses will be held in confidence unless she gives permission for it to be discussed with F.

It can be difficult for a domestic abuse sufferer to talk about the abuse. One coping method employed to survive in an abusive relationship is to blank out the most serious abuse. Gaps in her story may mean abuse that is too painful to recall. Also details can be distressing or embarrassing to recount and an admission of a poor choice of partner. It will hep to normalise M’s experience – one in four women suffer domestic abuse. A domestic abuse sufferer may be more likely to disclose coercive-controlling violence after establishing a trusted relationship with an open and empathetic listener (Miller 1997). The impact of the abuse on M’s needs to be determined in order to form a view whether she would be able to articulate her views at mediation.

A mediator can acknowledge the emotions felt by a domestic abuse sufferer but must remain impartial and be seen by both parties to remain impartial. Any support offered must be even-handed. Therefore, if support is offered to the M, then F must also be offered support. For example information could be given to M about domestic abuse support services and to F about appropriate programmes.

It is likely that parents with Separation-Instigated Violence will benefit from mediation, with appropriate safeguards and referrals to counselling for the violent partner to help re-stabilise psychological equilibrium.

It is also likely that the majority of parents who have a history of Situational Couple Violence are not only capable of mediating, but can do so safely and productively with appropriate safeguards. (Kelly and Johnson). These men and women appear to be quite willing to express their opinions, differences, and entitlements, often vigorously (Ellis & Stuckless, 1996; Johnston & Campbell, 1993).

The use of mediation where Coercive Controlling Violence has been identified

is more problematic. When screening indicates fear for one’s safety, a history of serious assaults and injuries, police intervention, or severe emotional abuse, including control and intimidation, alternatives to mediation should be considered. If both parties prefer that mediation proceeds, it should be shuttled, with separately scheduled times, a support person present, and protection orders in place. (Kelly and Johnson). Mediation can be preferable, however, for sufferers of coercive controlling violence to court adjudication because of the difficulty they face in giving evidence. In a safe setting they may have more opportunity to be heard and feel empowered. (Newmark, Harrell, & Salem, 1995).

If the violence was coercive controlling violence there is a risk that F could use the mediation process to control M. Perpetrators use violence to maintain the upper hand and control their spouses. Thus a woman in mediation usually cannot advocate for herself without fearing the response of her abusive partner (Geffner & Pagelow, 1990).

If further domestic abuse is disclosed to the mediator after mediation has commence and it is considered that it is still suitable for mediation to continue this will only be possible if M then consents to F being informed of what she has said about any further incidents she has disclosed to the mediator.

What is the risk to M and D if D spends time with F?

If there was coercive controlling violence there is a risk that F will use D’s time with him as a means of further controlling M. Also, if the conflict between F and M continues this will be harmful to D.

Where domestic abuse is occurring any children will also be physically or sexually abused between 30% and 66% of the time (Eddleson 1999). The risk of child abuse in the context of Coercive Controlling Violence is very high (Appel & Holden, 1998). Whether or not there is a link between situational couple violence and child abuse is not currently known.

Many domestic abuse sufferers believe their children are unaware of the abuse because they are asleep in bed or have left the room. However, the reality is often that the children have been woken by the noise of the violence, items being thrown or raised voices. Often they will have retreated out of physical harms way but are still at risk of emotional abuse from the incident. They will also see the injuries inflicted upon the domestic abuse sufferer.

It is deeply traumatic for children under the age of 8 to witness the abuse of the person who is their primary care giver. Psychological tests showed that these children found this more disturbing than the effects of direct physical maltreatment (Runyan 2006).

Children who are exposed to violence may suffer from a variety of trauma symptoms, including nightmares, flashbacks, hypervigilence, depression, and regression to earlier stages of development (Graham-Bermann & Levendosky, 1998).

Whatever arrangement is considered appropriate for D will have to be introduced in a manner so that D can feel safe with F. D will also need to know that M feels that she will be safe. A constant theme for victims of domestic abuse is the safety and well-being of their children (Jaffe, Zerwer, Poisson). M will only feel able to agree a progression of D’s time with F if she feels that D will be safe.

What are appropriate options to explore for future arrangements?

The experts report of Drs Sturge and Glaser in Re L (Contact: Domestic Violence) [2000] considered there should be no automatic assumption that contact to a previously or currently violent parent was in the child’s interests, if anything the assumption should be in the opposite direction and he should prove why he can offer something of benefit to the child and to the child’s situation. They said :

‘Domestic violence involves a very serious and significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally (and in some cases physically – which meets any definition of child abuse).

Without the following we would see the balance of advantage and disadvantage as tipping against contact:

	(a)	some (preferably full) acknowledgment of the violence;
	(b)	some acceptance (preferably full if appropriate, ie the sole instigator of violence) of responsibility for that violence;
	(c)	full acceptance of the inappropriateness of the violence particularly in respect of the domestic and parenting context and of the likely ill-effects on the child;
	(d)	a genuine interest in the child’s welfare and full commitment to the child, ie a wish for contact in which he is not making the conditions;
	(e)	a wish to make reparation to the child and work towards the child recognising the inappropriateness of the violence and the attitude to and treatment of the mother and helping the child to develop appropriate values and attitudes;
	(f)	an expression of regret and the showing of some understanding of the impact of their behaviour on their ex-partner in the past and currently;
	(g)	indications that the parent seeking contact can reliably sustain contact in all senses.’

They suggested that without (a)–(f) above they could not see how the non-resident parent could fully support the child and play a part in undoing the harm caused to the child and support the child’s current situation and need to move on and develop healthily. There would be a significant risk to the child’s general well-being and his emotional development:

‘Without these we also see contact as potentially raising the likelihood of the most serious of the sequelae of children’s exposure, directly or indirectly, to domestic violence, namely the increased risk of aggression and violence in the child generally, the increased risk of the child becoming the perpetrator of domestic violence or becoming involved in domestically violent relationships and of increased risk of having disturbed inter-personal relationships themselves.’

They added to the list (h) respecting the child’s wishes.

Ground rules to which both parties must agree for mediation to be effective have been suggested as follows: (Girdner, 1990).

• Acknowledgment of past abuse
• Encouragement of the abused partner to pursue an order for protection
• Requiring and monitoring attendance at anger management classes or therapy for the abuser
• Requiring and monitoring the participation of the abused partner in services for domestic abuse sufferers or therapy for the abused partner.

 

The violence alleged by M will therefore have to be put to F. He will need to be seen separately. This will provide balance as M will already have been seen on her own. Also there could be risks to M from his reaction to any further allegations. If appropriate, he can be offered support with information about anger management courses or, if there has been coercive controlling violence, about domestic violence perpetrator programmes.

Only if the requirements set out by Sturge and Glaser in a – g above are present can progressing arrangements for D to spend time with F be an option.

Of the 12 families reviewed by Women’s Aid, where a total of 19 children were killed as a result of arrangements for time with the perpetrator, five families had made the arrangements without court proceedings. If relevant violence is denied by F then the only safe options are those based on an assumption that M’s allegations are true. If this is not acceptable to F then mediation is not suitable and F will need to seek adjudication on the issue through the court so that findings can be made on the disputed allegations.

If the incidents have been such that D would be at risk of violence or other harm then only a supervised arrangement can be a current option. M will need to see evidence of change in F’s behaviour before D spending time with F unsupervised can be considered as an option. To achieve change F may need to agree to attend an anger management or domestic violence perpetrator programme, as appropriate.

Domestic abuse sufferers can experience a loss of confidence and self-esteem. This makes dealing with professionals, who appear as authority figures, hard. There is a risk that M may have reservations about an option but agree because she lacks the confidence to disagree. She may perceive the mediator to be giving approval to a proposal from F, by allowing it to be considered. Care will have to be taken that only appropriate options that would be approved by a court are considered.

Jane Wilson

Resolution National Secretary

Member, FMC Board of Directors

References

Appel, A. E., & Holden, G. W. (1998). The co-occurrence of spouse and physical child abuse: A review and appraisal. Journal of Family Psychology, 12, 578 –599.

Edleson, J (1999) ‘Children Witnessing of Adult Domestic Violence’, Journal of Interpersonal Violence, Vol. 14, No. 4, pp839-70

Ellis, D., & Stuckless, N. (1996). Mediating and negotiating marital conflicts. Thousand Oaks, CA: Sage

Geffner, R. & Pagelow, M.D. (1990). Mediation and child custody issues in abusive relationships. Behavioral Sciences and the Law, 8. 151 – 159

Girdner, L.K. (1990). Mediation triage: Screening for spouse abuse in divorce mediation. Mediation Quarterly, 7. 365 -376.

Graham-Bermann, S. A. & Levendosky, A. A. (1998). Traumatic stress symptoms in children of battered women. Journal of Interpersonal Violence, 13, 111-128.

Jaffe, Zerwer, Poisson. The barriers of Violence and Poverty for Abused Women and their Children After Separation

Johnston, J. R., & Campbell, L. E. G. (1993). A clinical typology of interparental violence in disputed-custody

Kelly, J.B., & Johnson, M.P., (2008) Differentiation among types of intimate partner violence: research update and implications for interventions

Miller, T.W. et al., (1997) Clinical Pathways for Diagnosing and Treating Victims of Domestic Violence, 34 Psychotherapy 425, 431

Newmark, L., Harrell, A. & Salem, P. (1995). Domestic violence and empowerment in custody and visitation cases. Family and Conciliation Courts Review, 33, 30 – 62.

Pence, E., & Paymar, M. (1993). Education groups for men who batter: The Duluth model. New York: Springe

Runyan, D (2006) ‘Listening to Children From the LONGSCAN Studies on Child Abuse and Neglect: Comparing Child Self-Report and Adult Report of both Exposures and Outcomes’ Conference Paper, XVI the ISPCAN International Congress on Child Abuse and Neglect, York, 3-6 September

Sturge, C; Glaser D (2000). “Contact and domestic violence – the experts’ court report”. Family Law - Bristol 615.

Women’s Aid (2016) Nineteen Child Homicides: What must change so children are put first in child contact arrangements and the family courts.