Can You Do Divorce Mediation if There Has Been Family Violence?

Research has consistently established the domestic violence rate during the time of separation at between 40% and 80%. If you have experienced intimate partner violence, does that mean you can’t undertake divorce mediation?

The issues are trust and control. Can a spouse who engages in violence be trusted to bargain in good faith and uphold their agreements? Will one partner feel coerced by the other into an agreement that is not in their interests?

These are important questions, and the answers will depend in large part on the situation. However, an independent panel examining family justice reforms in New Zealand had an interesting take. In order to predict whether mediation will be possible, it is important to understand what type of violence is occurring.

According to some research, there are four main types of intimate partner violence:

Coercive control: One partner uses intimidation, emotional abuse, physical abuse, humiliation, isolation, threats, financial abuse and other tactics to coerce and control the other partner.

Violent resistance: When a target of coercive control uses violence in response.

Situational couple violence: When specific conflicts escalate into physical violence.

Separation-instigated violence: Violence that occurs as the result of one spouse’s decision to leave.

When a mediator discovers that there has been violence in the relationship, he or she should try to find out more. While all four types are problematic, the types that pose the most risk to the viability of a mediated divorce are coercive control and separation-instigated violence.

The Courtroom Process May Not Help

When there has been violence, attorneys and clients often assume that the best or only way to divorce is through a court process, because that is the situation where each party’s physical safety can most easily be guaranteed. Yet court trials can be intimidating, humiliating and intrusive.

Mediation, on the other hand, promotes harmony by helping the divorcing couple come to an agreement they both feel they can live with. Mediation tends to lower the level of acrimony and provide greater control to the parties. It empowers parents to become equal partners in their future co-parenting.

If a spouse is worried about their physical safety during the mediation, it may be possible to hold it via telephone or Skype so that the parties are not physically together. Other concerns may be addressed by having lawyers and support people present to protect their clients from intimidation and having resources brought in, such as a guardian ad litem to represent the interests of the children.

If you have experienced intimate partner violence, don’t assume you can’t have a mediated divorce. Discuss your concerns with your lawyer and possible mediators for help planning a process that can work for you.