In a one day survey of Domestic Violence Services provided in Ireland on this day last year (6 November 2012), the following statistics were recorded: 537 women and 311 children were accommodated and/or received support from a domestic violence service; 115 helpline calls were received from women; 117 women and 152 children were living in a refuge; 21 women could not be accommodated due to lack of space. (www.womensaid.ie). Separation and divorce can be the result of domestic violence, but also a trigger for it.

The question of whether, and how, to mediate with couples who have experienced or are experiencing domestic violence or abuse has challenged and divided mediation professionals for many years now without consensus on how to handle such cases having been reached. Domestic abuse can be a contra-indicator for mediation for a number of reasons, mainly however that it is likely to compromise the equality of bargaining power, the free interaction with and the voluntary participation in mediation. On one end of the debate, scholars and practitioners argue that all cases involving domestic abuse should be ruled out of mediation. On the other end it is argued that the power imbalances caused by such abuse can be counterbalanced or eliminated by means of a combination of specific mediator skills and structural safeguards.

The practical reality, as so often, appears to lie in somewhere in the middle. In Ireland, mediators are trained to identify and manage situations which involve domestic abuse, by means primarily of pre-mediation screening, a knowledge of the dynamics of domestic abuse and information about support services to which victims, and perpetrators, can be referred. In theory, therefore, unsuitable cases are screened out of mediation and even if one does “slip through the cracks”, mediators can terminate the process and refer parties on to alternative services. Cases deemed suitable, where, for example, the violence is historic, admitted, or was a once-off event, and where the victim can give assurances as to her (or his) ability to engage effectively in the process, can be mediated with appropriate safeguards such as public waiting areas, separate arrival times and sometimes shuttle mediation.
In practice, however, things are a lot less straightforward. To illustrate just how complex this issue can be, let me give just a few practical examples:

As judges are becoming more sensitised to mediation or – as some would argue – to what mediation can do to reduce court lists, more cases are being sent to mediation by judges. While these referrals are not mandatory, it can be difficult in practice to say no when a judge suggests that he or she will adjourn a case to facilitate the parties in reaching an amicable resolution through mediation. This can occur even in cases where domestic violence has been disclosed, and certainly where such abuse lurks, as yet undisclosed, in the background. Mediators can therefore find themselves being asked to mediate a case involving domestic abuse in cases where one or both parties are not only afraid of their spouse or partner, but also of the potential negative legal consequences, real or imagined, of refusing to engage in such a mediation. The mediator in such a situation has, as yet, no power of directly communicating with the court in relation to the suitability of a case for mediation.

An example of such a case is I. v. I. [2011] IEHC 411, a custody and parenting case which featured an exceptionally high level of conflict between the parties, allegations, some proven, of domestic violence, negative impacts on the child in question and the commissioning of an expert report on the welfare of the child. In this case, despite, or rather because of the high level of conflict and the over 70 court appearances that preceded this judgment, the Judge made an interlocutory order on the substantive issue and then further ordered that before any further court proceedings the couple should attend mediation, appointed a specific mediator and then ordered “that the parties shall be obliged to explain to the court in the event of any further proceedings why they did not take up this opportunity.” (Per Abbott J.) Where should the mediator even begin in such a case where even before screening the written High Court judgment gives enough information about the circumstances to, at least on paper, raise serious concerns about suitability for mediation?

On a slightly less dramatic scale, in my own practice I have had a number of referrals of cases from lawyers over recent months of cases involving domestic abuse of various degrees. In most of these the legal advisers have been aware of the abuse, and have still recommended mediation to resolve matters in relation to the couple’s separation. Do I screen these cases out and send them back to the solicitor? If I do, being brutally honest about it, am I likely to get many more referrals from them? Do I try to muddle through with the assistance of structural and procedural changes and try to balance the imbalances out as much as possible? Or do I listen to the advice of a friend who works for a domestic violence advocacy service who feels strongly that victims of domestic violence should never engage in as informal a process as mediation where that victim has no assistance in recognising, voicing and advocating her own needs and interests?

These referrals also fail to recognise the potential for the mediation itself to trigger further outbreaks of violence. Parties themselves may self -refer saying: “It’s OK he only ever was violent when he was drinking but that has stopped now”, only to find that the stress and upheaval of the mediation drives people back into negative behaviours or releases anger that has been building for a while, with dangerous consequences. One such case was referred to me by a lawyer with the assurances that the violence was in the past, both parties had had counselling to address its consequences and “it was no longer an issue”. Both parties reiterated this at screening sessions and confirmed their desire to proceed with mediation. At first, all seemed well and the interaction between the parties was positive and respectful. Until the finances were put on the negotiation table. When it came to agreeing a sum that the husband would pay to the wife by way of maintenance, an obviously ingrained pattern of control on the one side and submission on the other became apparent and the resulting dynamic ultimately led me to terminate the mediation.

The final example I want to share is more subtle and complex, and is currently keeping me awake at night, at least to a degree… What of a situation where violence is disclosed by the victim and admitted by the abuser, and the situation is not dangerous enough to warrant immediate screening out, but yet worrying enough to consider doing so. While the obvious solution might be when in doubt, screen out, but I know that by doing so the couple, who are still living under the same roof, will be tied into contentious court proceedings for at the very least another year. If they were to reach agreement in mediation, however, they would likely be able to move out and move on within the next month or two. Will they, and their children who have witnessed the violence and have been living in a highly conflictual situation be better served by a less formal process with less safeguards but hopefully speedier resolution and some potential for personal development or a more structured, safeguarded process which is however likely to take much longer, drain more of the family’s resources and encourage a higher level of conflict and adversarial behaviour between the parties? I don’t know, but I’ll try to find out…


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3 comments

  1. Wonderful article Sabine. I’m not a family mediator but am alive to the potential for violence in certain of my commercial mediations. I agree that we, as mediators, cannot avoid all risk. We need to make careful risk assessments and proceed with caution in appropriate cases. I wish you every success in the matter that’s been keeping you awake at night.

    Rick Weiler

  2. Just writing a book on this as a veteran of DV in Ireland.
    Why these mediators are not trained in PTSD is beyond me.
    They expect the victims to sit in the same room as their abusers as if nothing had happened. Thus re abusing the victims.
    Do we bring rape victims into the same room as their rapists? within feet of each other?

    Dr Karin and other professionals know from me what the truth is re female victims of DV in Ireland is all about.

    At the DV conference in Dublin 2014 I was not shocked to learn that no one knew about Legal abuse syndrome- for that is what so many of us endured as we dragged through the system, called Eve ill liars, feeble minded, mad etc and all the while the perpetrator groomed the so called learned professionals . Has to be seen to be believed.

    Never worry about the children- for the child protectors know how to deal with their disclosures – Electric shock therapy will sort them out fast and then the victims can all live with perpetrator again and play happy families. Good old Irish style.

    There is a world wide pattern now- which I will share – because when all protective mothers and children got together we all had a similar story to tell.

    Ireland needs experts like Dr Karin Huffer, Charles Pragnell. Barry Goldstein and Lundy Bancroft and Dr Phyllis Chesler to come and share their knowledge . Ireland is using theories in 2014- disproved eons ago in other countries.

    You can have my submission if you wish for the real truth.

    Safe Kids International

    World-Wide Pattern Followed in Court Licensed Abuse Cases

    1) Child discloses abuse, usually sexual abuse. Law enforcement does substandard investigation, says there is not enough evidence to give to D.A. and closes the case. Child Protective Services does a substandard investigation, labels it unsubstantiated and shunts it into family court as a custody case.

    2) Family Court Judge appoints insider children’s attorney and/or psychologists to shift blame to the mother by fraudulently reporting that she is a liar/alienator and/or mentally ill
    and recommend custody to the father, who they opine is the “friendly parent”.

    3) Judge minimizes, disregards and conceals evidence of
    abuse, finds the mother to be lying/alienating or mentally ill and gives custody to the abusive father.

    4) Judge isolates children from the mother and anyone who might support the truth about the abuse while they are Stockholmed and brainwashed by the abuser, a “reunification/deprogramming” therapist or an out-of-state camp into forgetting about or recanting the abuse and agreeing to live with the abusive father.

    5) Judge places mother on supervised visitation
    where neither she nor the children are allowed to speak of abuse, past or present. Supervision monitors report to the court if either speaks ofthe abuse and end the visits if they do.

    6) Judge makes orders
    that prohibit children from seeing professionals who may support their disclosures, prohibits mother from taking children to doctors or
    therapists, and gives the perpetrator control over who they see.

    7) Judge gag orders the mother so the public cannot hear about the abuse or the cover up of abuse and threatens that she will not see her children again if she does not remain silent and go along with the coverup.

    8) Judge disempowers the mother by bankrupting her through
    the legal process and traumatizing her through separation from her
    children and enabling the abuse to continue.
    NOTE: The reason this pattern is portrayed as “gendered” is because it reflects the
    reality that about 99% of cases which involve these tactics being used to switch custody from a good primary parent to an abusive one in family court involves the mother as the protector and the father as the abuser. Most cases which involve abusive mothers are dealt with by CPS and they don’t usually have any problem taking kids away from them.

    There is no known world-wide pattern of punishing and silencing fathers who are trying to protect their children

  3. If I do, being brutally honest about it, am I likely to get many more referrals from them?

    Always the old money issue. How sad.!

    Or maybe the blackballing of those who do the right thing – especially re female solicitors in Ireland.

    DV advocates know the full dynamics involved and can actually write each script for you. What a shame they are not the expert witnesses in court instead of psychologists and psychiatrists who in fact have no real training in DV.

    Its all about the money because court is a corporation and solicit-ors solicit business for the court.

    Parties are mere pawns on a chess board with the only players being agents of the court.

    Took me a long time to piece the whole puzzle together , especially from all the trauma and legal abuse and loosing 100% of property etc to our perpetrator- because we disobeyed the judge and refused to return home and play happy families.

    No one wanted to listen to me and now all I said was proven true as the perpetrator moved onto the victim- child next door and moved her in.

    Makes me puke to see the names of professionals involved parading around still and claiming to be experts.

    They all were institutionally groomed by the perpetrator.

    http://safe-at-last.hubpages.com/hub/The-Fine-Art-of-Grooming

    The grooming of doctors, nurses, mental health carers, family support workers and other public servants is called “Institutional Grooming” and the perpetrator does it for the purpose of self-preservation.

    Institutional grooming refers to the manipulation of professionals who have contact with the victim, so that any allegations of abuse made by the victim are doubted or outright disbelieved.

    The targets of Institutional Groomers may include their victim’s General Practitioner, psychiatrist,psychologist, child health nurse, pediatrician, carers at a Family DayCare Facility, school teachers, counselors or therapists. The public servants targeted may be social workers, case workers, investigative officers or police officers employed by government departments such as the Department For Child Protection, the Police’s Family Protection Unit and the Department for Community Development.
    When done with enough finesse to be successful, institutional grooming ensures that any complaints alleged about the perpetrator are either disregarded outright, doubted and therefore not investigated thoroughly, or ifacted upon, subsequently dismissed in a court of law.”
    I with my degree knew more than all of them put together.

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