Family Violence and Family Mediation – Can the two go together?

The Independent Panel examining the 2014 Family Justice Reforms confirmed there is a place for Family Dispute Resolution (FDR) in situations where family violence has occurred or is a concern. The panel concluded that "knowledge of family violence in all its forms is still not widespread, and there appears to be limited understanding of its impact on children."[1] Therefore, the Panel provided direction to the Ministry of Justice to develop best practice standards for FDR suppliers and providers in such cases.[2] This article will provide a brief insight into the typology of family violence (and in particular Intimate Partner Violence (IPV) which may be relevant for separating parents), and explore some of the reasons why FDR mediation is a suitable process to resolve parenting disputes in couples with a history of IPV in a way that maximises the welfare and best interests of their children.

It is important to understand that IPV is not the same for every couple. Research done over the last two decades defined four types of IPV[3]:

• Coercive Controlling Violence is “a pattern of emotionally abusive intimidation and coercion, and control, coupled with physical violence, used against a partner.”[4] The tactics typically used are: intimidation, emotional abuse, isolation, humiliation, denying and blaming, use of children, asserting male privilege, financial abuse, and threats.
• Violent Resistance arises when the target of coercive control uses violence in response to the violence of their partner.
• Situational Couple Violence arises in the context of specific conflicts between partners that turn into arguments escalating to physical violence. This type of violence is perpetrated by both males and females equally.[5]
• Separation Instigated Violence starts as a result of one partner’s decision to leave the relationship.

Taking the time to ascertain the type of violence and gain an understanding of the levels of control underlying the relationship should be the determining factor in recommending FDR or a court process. The challenge lies with the time and skill required to undertake and correctly diagnose a situation – particularly when the rate of IPV at the time of separation is consistently found in research to be between 40%-80%.[6]

While Violent Resistance and Situational Couple Violence are responsible for many of the reported family violence cases, Coercive Controlling Violence and Separation Instigated Violence are the types that pose most risks and the ones we should be most worried about in mediation.

Coercive Control is often characterised by denial and invisibility even by healthcare professionals and by the victims themselves. This presents considerable challenge both in the screening and in the handling of these cases. The complexity of coercive controlling relationships requires dispute resolution professionals to acquire a high level of knowledge and expertise. Dedicated professional training should enable a select group of mediators to identify and manage parenting disputes in couples with IPV history.

Our experience at FairWay Resolution Limited after six years of providing FDR to New Zealand families, and through international research, is that mediation can minimise risk and reduce acrimony between parents.  The flexible, responsive, non-adversarial nature of the process can be designed to “fit the forum to the fuss” and include support people for both parents: mediation can also include lawyers, a voice of child specialist and even co-mediation of one male and one female mediator.  In more serious cases, where victims are concerned about being in the same room with the perpetrator, mediation can take place with parties in separate rooms or even over Skype or phone. Both faster and more cost effective than a court process, mediation provides an opportunity for parents to make an initial plan for the children to maintain contact safely with both parents. It allows parents the time and opportunity to really focus on how their behaviour – both the good and the bad – is affecting their children and allows for honest reflection and change.  It also provides a safe place to have very difficult conversations and improve future communication. The mediation process may alter the feeling of being bullied by the other parent to a posture of empowerment, as each parent becomes an equal partner in the decisions on the future care of the children. Such outcomes are not rare, especially when parents are encouraged to undertake Preparation for Mediation prior to the mediation sessions, where they work on defining their objectives and learn how to communicate more constructively with the other parent.

Despite providing physical safety, studies have shown that court processes can be humiliating, intimidating and intrusive for parents.[7] Attempting to achieve an outcome that will maximise the welfare and best interests of children, it is not usually helpful to try and find who is right and who is wrong, especially when according to Carrie Menkel-Meadow “polarised debate distorts the truth”.[8] Nowhere are these words truer than in care of children disputes, which embody a painful reality of an emotional tangle that needs to be gently untangled.

Professionals who work in the family law arena agree that they would benefit from more training to assist them to identify and manage cases with a history of IPV. FDR Providers would require adequate resources, that acknowledge the complexity of family violence, in order to develop and implement comprehensive screening tools, as well as extensive family violence training for mediators and increased security presence at the time of mediation.

A further recommendation from the Panel was to develop, resource and implement a strategic framework to improve family justice service for Maori[9] including delivery and funding of kaupapa Maori FDR services. The recently published E Tu Wahine, E Tu Whanau: Wahine Maori Keeping Safe in Unsafe Relationships[10] highlights the overrepresentation of Maori in cases involving family violence (between 57% to 80%[11]) and asserts the need to create new ‘restoration’ narratives for wahine, tane and tamariki that better reflect the Maori culture and values.[12] The report explains how systemic entrapment, which typically characterises coercive controlling relationships, is even more complicated for Maori through the effects of multi-generational trauma and colonisation. The removal of the traditional support systems of the pre-colonisation Maori culture created high levels of frustration, often expressed through violence, and left the whanau, wahine and tamariki devoid of their traditional support systems.[13] To break this cycle and heal the whanau, the report points to the need of a mana-enhancing system. The report promotes the idea of ‘Culture as Cure’ and points to matauranga and tikanga as the sources for healing the whanau.[14] The unique way in which FDR can be designed to work with families in the way in which they would like mediation to occur provides the perfect environment for whanau, hapu and hapori to korero so that safe care plans can be made for tamariki and mokopuna. At FairWay we have skilled Maori mediators who can and do provide FDR service to meet the needs of whanau.

At the heart of the family justice system is the overarching principle that the welfare and best interests of the children should guide any process designed to make decisions for their future care. The flexible nature of FDR, together with its underlying values of respect, non-judgement, empathy and empowerment, aspire to create better communication between parents, even where family violence occurred. Better communication is the key to better parenting after separation. It is vital that we progress cases carefullyhen family violence has been identified.  Families do need somewhere to go and for many reasons some do not want to go to court – yet they need experts to assist them to find resolution. 

Let’s continue to work together as professionals to assist parents to reach resolution through an empowering process which deals with safety concerns, respects both parties and restores people’s confidence in their ability to work together as parents. 

ENDNOTES

[1] Te Korowai Ture a-Whanau: The final report of the Independent Panel examining the 2014 family justice reforms, p 33.

[2] Above, Te Korowai Ture a-Whanau recommendation 24b

[3] Joan B. Kelly and Michael P. Johnson “Differentiation among types of intimate partner violence: Research update and implications for interventions” (2008) 46 Fam Court Rev 476 at 478-481.

[4] Above at 478.

[5] Michael Johnson, Janel Leone and Yili Xu “Intimate Terrorism and Situational Couple Violence in General Surveys: Ex-Spouses Required” (2014) 20(2) VAW 186, at 187.

[6] Helen Cleak, Margot J. Schofield, Lauren Axelsen and Andrew Bickerdike “Screening for Partner Violence Among Family Mediation Clients” (2015) 33(7) J Interpers Violence 1118 at 1120.

[7] Douglas D. Knowlton and Tara L. Muhlhauser, “Mediation in the Presence of Domestic Violence: Is it the Light at the Tunnel or is it a Train on the Track?” (1994) 70 North Dakota L REV 259, at 266; Nancy Ver Steegh “Yes, No, and Maybe: Informed Decision Making About Divorce Mediation in the Presence of Domestic Violence” (2003) 9 Wm & Mary L Rev 145, at 196.

[8] Carrie Menkel-Meadow “The trouble with the adversary system in a postmodern, multicultural world” (1996) 38 Wm & Mary L Rev 5 at 6.

[9] Te Korowai Ture a-Whanau recommendation 7

[10] Wilson, D., Mikahere-Hall, A., Sherwood, J., Cootes, K., & Jackson, D. (2019). E Tu Wahine, E Tu Whanau: Wahine Maori keeping safe in unsafe relationships. Auckland, NZ: Taupua Waiora Maori Research Centre.

[11] Above, p15.

[12] Above, p 64.

[13] Above, p. 65.

[14] Above, p. 71.

                       

Keri Morris

Keri is the Manager ODR at the Domain Name Commission She has many years of experience in dispute resolution and is passionate about creating opportunities for agreement. Keri is a Fellow of the Chartered Institute of Arbitrators UK and a Fellow of Arbitrators and Mediators Institute NZ. MORE >

                       

Nurit Zubery

Born and raised in Israel, Nurit Zubery studied law at Tel-Aviv University and worked as a lawyer in the areas of litigation, commercial and employment law, prior to moving to NZ in 1999 where she has owned and managed two successful businesses. In more recent years, Nurit has been exploring… MORE >