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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. |