The newsletter of the ISBA’s Standing Committee on Women and the Law
Mediation and Domestic Violence: A practical guide for mediators and attorneys
In 2006, the Illinois Supreme Court adopted rules governing mediation in family law cases. Illinois Supreme Court Rule 905(b) mandates each judicial circuit to establish a mediation program for all dissolution of marriage and paternity cases involving issues of child custody or visitation. Rule 923(a)(3) mandates that if the parties to a case involving child custody or visitation issues have not reached an agreement regarding those issues at the time of the initial custody case management conference, the parties must attend mediation to resolve those issues prior to litigation. While most judges and attorneys agree that mediation is generally a good thing for most custody and visitation cases, there may be certain cases, such as cases that involve domestic violence, that may require special considerations during mediation or perhaps a waiver of mediation altogether.
Supreme Court Rule 905(b)(iv) exempts certain cases from the mediation process if certain “impediments” exist. The committee comments to Rule 905 list certain impediments, including but not limited to, domestic violence, mental health issues, and drug or alcohol abuse. In cases where an impediment to mediation may exist, it is up to the Judge to determine that the impediment exists and exempt the parties from mediation. Therefore, if a party wants to be exempt from mediation due to an impediment such as domestic violence, then that party or his or her attorney should file an objection to mediation before the initial custody case management conference. The judge will then make a determination as to whether or not the impediment exists and whether the parties will be ordered to attend mediation.
Not all cases involving domestic violence are necessarily exempt from the mediation process. I have successfully mediated a number of cases where domestic violence has been present. However, mediators may need to handle these cases differently. At the outset, mediators should be able to identify whether or not domestic violence exists. Typically, in my circuit, the form used by the court for mediation referrals includes information regarding any orders of protection that may be in effect. That information is helpful, but a mediator should also request copies of the pleadings from the parties’ attorneys to check for any allegations regarding domestic violence as well. Mediators may also use screening tools, i.e., questionnaires or intake forms, that must be completed by the parties prior to the first mediation appointment. Screening tools should be kept confidential so as not to disclose any unintended or unknown information to the other party or risk any parties’ safety. Any party or their attorney should inform the mediator of any domestic violence or safety issues or concerns prior to the first mediation session.
Once the mediator identifies that domestic violence is an issue in the case, the mediator should take certain steps to safeguard the session and the mediation process. First, the mediator should make sure he or she has established sufficient safeguards to protect the parties, the mediator, and the mediator’s office staff and personnel. A mediator may consider having the parties arrive and leave mediation separately, to sit in separate waiting rooms, and in certain cases, allow an advocate or attorney to be present in the waiting room for support of an abused party.
During the actual mediation process itself, the mediator should be knowledgeable of the dynamics of domestic violence—specifically, that domestic violence is fundamentally about an abuser’s need for power and control. Successful mediation presumes that the participants have equal power in the mediation and decision-making process. An imbalance of power may result when a party fears asserting his or her own needs and goals or when he or she is unable to assert needs or goals due to trauma, etc. If the balance of power is not maintained or goes unrecognized during the mediation process, the process or any resulting agreement could put one party or the children at an increased risk of danger or the resulting agreement may be unfair or one-sided. Thus, the mediator will need to diligently assess and maintain the balance of power between the parties throughout the mediation session.
There are some tools that a mediator may use to maintain the balance of power in mediation. First, the mediator can encourage or allow an advocate or attorney of the abused party to be present in the waiting room to provide support throughout the process if needed. Second, the mediator can mediate with the parties separately, in separate rooms or at different times in order to increase the abused party’s ability to fully assert her needs safely. This process is generally referred to as “caucusing” or “shuttle mediation.” The mediator will have to be careful not to disclose any information received by the abused party during caucusing that she does not want to share with the other party. The mediator should ask for permission to disclose. Third, the mediator should continue to monitor the process for the abused party’s safety and ability to negotiate. If at any time the mediator feels that the mediation process puts the abused party at an increased risk of danger or that the abused party does not have the ability to adequately negotiate, the mediator can terminate the mediation session without any explanation to the court or the other party other than that the mediator feels that mediation is not appropriate or feasible in this particular case. Indeed, the mediator must adhere to confidentiality of the process and must remain neutral so as not to disadvantage either party in court.
If the mediator can maintain the balance of power, the mediator should consider facilitating the crafting of an agreement that is very specific and incorporates any safety measures and concerns of the abused party such as locations and times for visitation exchanges, surrenders of passports, etc. Both parties should be fully and regularly informed that they can terminate the mediation process at any time. Even though mediation is a “mandatory” process, if either party chooses not to attend or cooperate, the mediation is terminated and the mediator would file a general non-compliance/termination report with the court. To keep the parties on board with mediation, however, I generally spend time discussing the advantages of mediation to the parties throughout the mediation process to redirect them and to keep them on task. Additionally, I find it helpful to remind the parties that my job as mediator is not to make judgments about the truth of the allegations of abuse. I am not the judge. It is not necessary to establish whether the allegations are true or false. What is necessary is that regardless of whether or not the allegations are true or false, if one party has safety concerns, those concerns must be addressed in any agreement—which can be done without anyone admitting to the truth of the matter. The mediator’s job is to redirect the parties’ focus on getting their respective goals and needs met regardless of whose version is “correct” or “justified.” So long as both parties’ needs and goals are addressed and incorporated into a final agreement, both parties can feel confident with the agreement. Finally, it is important to note that in some cases mediation may not be possible if the imbalance of power is so great and the mediator cannot maintain the balance. In those cases, the mediator should terminate the mediation immediately.
As for lawyers representing victims of domestic violence in custody cases, talk with your client about mediation before the initial custody case management conference. In some cases you may need to object to the mediation process. In all other cases, you should, at a minimum, explain the mediation process with your client before the first mediation session. Explain the entire mediation process, including caucusing, and advise your client that he or she should tell the mediator about any safety concerns prior to mediation in a confidential setting. If the mediator has an intake form or screening tool, make sure your client adequately completes it and returns it to the mediator in advance of the first session. Finally, remind your client that even though mediation is a good thing and can work even in cases involving domestic violence, your client’s safety is the ultimate priority and he or she can terminate mediation at any time if he or she feels unsafe.