Yes, No, and Maybe: Informed Decision Making About Divorce Mediation in the Presence of Domestic Violence

Abstract

Divorce mediation in the context of domestic violence is one of the most controversial issues in family law today. Some believe that mediation is never appropriate when domestic violence has taken place, and others believe that it is always appropriate and should be mandatory. These views can be reconciled by taking a third approach, that mediation is sometimes appropriate but that this decision must be made on a case-by-case basis in consultation with the abuse survivor. The central premise of this article is that victims of domestic violence should have the opportunity to make an informed choice about which divorce process - mediated or adversarial - will best meet the needs of their families. Because families are different and because both adversarial and mediated proceedings vary in quality and accessibility, decisions about what process to use must be made on an individual basis in light of the real, not theoretical, options available to the family. The article uses social science research to (1) establish that families experience different types of violence and consequently differ from each other in ways that are significant for choosing a divorce process; (2) provide objective information on how mediation and the adversarial process compare in terms of overall effectiveness, satisfaction rates, and compliance with agreements or orders; and (3) evaluate the extent to which commentators' fears about mediation and domestic violence have been substantiated. The article analyzes this information and suggests factors, both individual and systemic, to be considered in choosing a divorce process. Finally, the article discusses specific practice safeguards and makes recommendations for future change.

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