Domestic Violence Theories and Mediation

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Definition of Domestic Violence

Domestic Violence can be defined in many different ways. For this text, I define Domestic Violence as abuse between two related and interdependent parties that come to mediation. I also think of abuse in two dimensions. Firstly, there many forms of Domestic Violence such as physical, sexual, financial, emotional and spiritual abuse. Secondly, the degree or intensity of the abuse can vary. Physical abuse can range from blocking a door to prevent someone from leaving a room to assault, resulting in death. Sexual abuse can range from unwanted touch to rape. As explained below, I do not consider the type or the degree of abuse relevant to whether mediation should occur.

In alignment with anti-bullying policies, a final observation is that the determination of whether Domestic Violence occurred is related to the experience of the person targeted by the abuser, not the intent of the abuser. To use the example of unwanted touch, the abuser may intent the action as a natural, friendly gesture expressing intimacy. If the recipient of that touch, however, does not want the intimacy, then the touch is a violation of her personal space.

Domestic Violence and Mediation

The Inventory of Promising Practices – Safety from Domestic Violence (ACWS) published by the Alberta Council of Women’s Shelters with funding from JSG Alberta identifies risk assessment as

“… essential in establishing the safety of women and children fleeing violence: it helps determine the risk of re-assault and/or femicide, and helps survivors and service providers collaborate to manage specific risks.”

We know from research that the time of separation is a particularly sensitive time for the victim of domestic violence. The report What You Don’t Know Can Hurt You (Cross, Crann, Mazzuocco, & Morton, 2018) states that

“The importance of maintaining a safety focus cannot be overstated. … Ontario’s Domestic Violence Death Review consistently finds (2003 – 2016) that a history of domestic violence and pending or recent separation are the first and second highest risk factors for lethality in domestic homicides.” 

The family mediation process formalizes the separation, as partners are encouraged to try to work out how to co-parent their children, and increases the risk for victims of domestic violence. Also, a critique of mediation in these situations is that the confidentiality and privacy of the mediation process expose victims of domestic violence to an increased risk (Maxwell, 2017). The concern is that mediation with its private and confidential setting at a time of heightened risk for the victim becomes an opportunity for abusers to continue their abuse.

A long-term study conducted by C. Beck et al., published in 2011 for the National Institutes of Justice (Beck, Walsh, Mechanic, Figueredo, & Mei-Juang, 2011) considered inter-partner abuse in mandatory mediation. The study spanned nearly a decade and involved 569 cases. Mediators identified inter-partner abuse in 59% referred to mandatory mediation. In these cases, 97% of both mothers and fathers reported at least one incident of some form of psychological abuse, physical abuse, threatened and escalated physical violence and sexual intimidation/coercion/assault. The report also finds that inter-partner abuse does not end at separation or divorce. Similar results are reported in an Australian Study, The Experience of Separated Parents from 2015 (Cleak & Bickerdike, 2016). Also, Cleak and Bickerdike reference a study by C. Beck et al. from 2010 reporting that 90% of couples attending divorce mediation reported partner violence and only about 7% of cases were screened out.

The purpose of a Safety Screen, as the name implies, is to assess if there are safety concerns of relevance to a mediator. The underlying assumptions are that a) mediations typically take place in a mediator’s office with both parties present and consequently a mediator must mitigate risk to a participating party, and b) that the mediation process is based on the principle of self-determination which will be negatively influenced by the presence of safety concerns. From a mediator’s point of view, the presence of safety concerns creates issues about the efficacy of the mediation process. The presence of safety concerns indicates a power imbalance that will affect how the party that perceives to have less power engages in the mediation process and represents her interests. The risk is that a power imbalance will result in a mediation agreement that does meet her needs. A mediator may choose to intervene to balance the power between the parties with the intent to allow both parties to fully express their interest so that the parties can achieve an agreement that is genuinely collaborative and responds to the interests disclosed in the mediation process.

A Map of Domestic Violence Theories

Whether such an intervention is successful or not depends on how domestic violence is understood. Jennifer Lawson, in her article Sociological Theories of Intimate Partner Violence (Lawson, 2012) explores feminist and family violence theorists’ perspectives on intimate partner violence. From a feminist point of view, intimate partner violence is about patriarchal domination and can only be understood from a gender-informed lens. Intimate partner violence is gender asymmetrical, committed by men against women. From family violence theorists’ point of view, intimate partner violence is gender symmetrical, both parties perpetrate abuse, and the violence has structural and conflict based root causes.

Family violence theory (FVT), according to Jennifer Lawson, breaks down into different subcategories. Systems Theories stipulates conflict within the family system is healthy and inevitable; how the family manages conflict is the key to understanding why violence is used. The theory suggests an investigation of how the partners resolve conflict. Ecological Theories stipulates that understanding the environment and relationships of the individual are essential to understanding violent behaviours. Exchange/Social Control Theories predicts that violence occurs when the rewards of violent acts outweigh the risks. Resource Theories suggests that individuals will use all resources available to them, including violence, to achieve their goals.

Jennifer Lawson also points to integrative theorists who attempt to combine both theories to understand intimate partner violence. She refers to Michael Johnson (2008) who developed a typology of intimate partner violence that is inclusive of both family theories as well as feminist theories. Michael Johnson refers to intimate terrorism – rooted in gender roles and concepts of control and domination (gender asymmetrical), situational couple violence – rooted in conflict between the parties (gender symmetrical), violent resistance – violence utilized in response to intimate terrorism, and mutual violent control – both partners use violence to control each other. It is important to note that it is the cause and not the degree of violence that matters in Johnson’s typology.

Mediator’s Dilemma

With this map of domestic violence theories in mind (Table1), mediation may be suitable when the cause of the violence can be understood from an Integrated Theory – Common Couples Violence perspective where partners may use violence to manage the conflict between the partners, but not for the other typologies of violence.

Table 1: Map of Domestic Violence Theories
Family Violence Theories (FVT) –       Gender symmetry –       Rooted in conflict –       Based on general population studies	Sub Categories of FVT o   Systems Theory (conflict and feedback loops) o   Ecological Theory (relationships) o   Ex-Change/Social Control Theory (cost of violence vs benefits) o   Resource Theory (violence as a resource/strategy to manage conflict)	Integrated Theories Typology of Domestic Violence based on the purpose of the violence (M. Johnson) –       Common Couple’s Violence (conflict)
Feminist Theories –       Gender asymmetry –       Rooted in dominance and control –       Data come from shelters, police, emergency rooms		–       Intimate Terrorism (dominance) –       Violent Response (response to intimate terrorism) –       Mutual Violent Control (dominance by both parties)
Based on Jennifer Lawson, Sociological Theories of Intimate Partner Violence (2012)

That raises the need for a review of currently used domestic violence safety screens to determine whether a safety screen can identify the typology of intimate partner violence by identifying the causes for the violence and not just function as a device to establish if violence occurred or is occurring.

The dilemma for the mediator is that if the violence between the partners can only be understood as intimate terrorism, rooted in control and domination, power-balancing interventions can put the victim of intimate partner violence at risk and negate the self-determination principle of participants to a mediation. 

ENDNOTES

ACWS, A. C. (n.d.). Inventory of Promising Practices. Retrieved May 16, 2019, from www.acws.ca: https://acws.ca/inventory-of-promising-practices

Beck, C. J., Walsh, M. E., Mechanic, M. B., Figueredo, A. J., & Mei-Juang, C. (2011). Intimate Partner Abuse in Divorce Mediation: Outcomes from a Long-Term Multi-Cultrual Study. US Department of Justice.

Cleak, H., & Bickerdike, A. (2016). One way or many ways: Screening for family violence in family mediation. Family Matters No. 98 Australian Institute of Family Studies, 16-25.

Cross, P. C., Crann, S., Mazzuocco, K., & Morton, M. (2018). What You don’t Know Can Hurt You: The importance of family violence screening tools for family law practitioners. Department of Justice Canada.

Johnson, M. (2008). A Typology of Domestic Violence. Boston : Northeastern University Press.

Lawson, J. (2012). Sociological Theories of Intimate Partner Violence. Journal of Human Behavior in the Social Environment, 572-590.

Maxwell, N. G. (2017). The Feminist Dilemma in Mediation. International Review of Comparative Public Policy, 68-83.