Can We Mediate if There Has Been Domestic Violence in the Past?

In a family mediation or divorce mediation where domestic violence issues have occurred or have been raised, a diligent mediator will evaluate the parties’ past conduct and use good professional judgement about whether a mediation should take place. Sometimes mediation may still be a good choice if measures are taken by the mediator to assure that there is no imbalance of power between the negotiating parties. One way to accomplish that balance is for each party to attend mediation with an attorney present. At Maryland Divorce Mediation and Legal Services with Nancy Caplan, parties with a volatile relationship may be placed in separate rooms for some or all of the duration of the mediation. Ms. Caplan might also take steps to assure that the parties arrived and departed separately, if requested to do so.

Where there is a history or pattern of domestic violence, family mediation or divorce mediation without attorneys present and in separate rooms is likely not appropriate due to the over-riding power imbalance of the parties. Where there is a pattern or history of domestic violence the parties should ideally be represented by attorneys through a case filed in court, so that the court can oversee a potentially dangerous situation. Where there are allegations of domestic violence against children private mediation is not an option. Court supervision and the protections provided in a judicial setting is the appropriate setting.

However, it is important to note that mediation is absolutely not limited to cases where the parties are “agreeable” or “amicable.” This is a myth. The greater the conflict the greater the need for mediated intervention subject to the limits of domestic violence history. Therefore before parties head straight to expensive and adversarial litigation, they should instead consider mediation with their attorneys present. While this is more costly than friendlier participant mediations, it may still be more cost-effective than litigations or adversarial negotiations. If emotions are running high will aggressive adversarial negotiations and litigation help you settle or stir the pot? Mediated negotiations reduce and de-escalate conflict.

Many times a single or isolated occurrence of a non-typical, violent escalation of the parties occurs at the height of separation decision. It is these cases the Mediator must assess whether the incident caused a lasting imbalance, or whether time and the parties’ experience with one another has properly diffused the emotions so that the mediation can go forward with or without attorneys present at the mediations.

No matter what, if emotions escalate during mediation, the mediator must take swift action to reduce the conflict. Immediate separation of the parties into separate rooms, or adjournment of the session may be the appropriate intervention. The mediator should take sensible measures to allow the parties to exit mediation separately to avoid any conflict outside of the mediator’s office. It should be noted that the mediator has the obligation to break the confidentiality of the mediation and report threatened domestic violence to the authorities under serious circumstances. The mediator will explain these rules of mediation procedure to the parties at the onset of the mediation, so that both parties understand the implications of their extreme negative conduct at the mediation.

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