Domestic violence is a prevalent problem in Canada. Unfortunately, family violence is a genuine reality for many families. Mediation is a great alternative to litigation, saving families, time, stress and money. Although mediation is not mandatory in family law matters in Ontario, per 7.3 of the Divorce Act, it is highly suggested.
"To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process." -
Family dispute resolution process
(Section 7.3, Divorce Act)
There is currently a growing potential that a matter may involve domestic violence, given that recent studies have estimated that abuse is present in at least half of all custody and visitation disputes referred to family court mediation programs (Newmark, Harrell & Salem, 1994; Pearson, 1997).
Mediators must learn to recognize domestic violence, whether or not the parties disclose it. A mediator must be able to identify and process these couples most appropriately. Domestic violence cases must be dealt with differently than those matters without domestic violence.
Domestic violence is not always easily recognizable.
Many people want to keep it a secret, try to deny, minimize what happened, believe it is their fault or is too embarrassed to provide details. Mediators should do their best to watch for warning signs that are common with domestic violence matters.
Domestic violence and abuse can be categorized into three general groups: 1) physical abuse; 2) sexual abuse, and 3) psychological abuse.
It is important to remember that some types of psychological abuse also include physical and sexual abuse.
The purpose of abuse is to maintain power or control over the other party; a major power imbalance results in the relationship.
What are some examples of abuse?
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Physical violence, including assault (pushing, shoving, slapping, choking, hitting, biting, kicking, etc.);
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Violence against pets;
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Kidnapping or confining the other party;
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Sexual assault;
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Destruction of personal property;
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Manipulative behaviour;
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Threats to take the children away;
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Threats to destroy the other party financially or leave them with nothing;
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Threatening the other party with weapons;
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Destroying of personal property;
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Limiting the use of telephone or isolating the other party;
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Gaslighting;
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Using children to threaten the other party with custody or visitation;
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Limiting access to cash, credit cards, bank accounts, etc.;
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Withholding child support payments;
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Making unilateral decisions about whether the other party can work or what purchases they can or cannot make;
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Name-calling, insulting or degrading comments towards or about the other person; and
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Stalking whether in person, via text, email or mail.
The list above is not exhaustive and can include other forms of abuse.
Mediation should always first consider the safety of all involved in the mediation.
Measures should be implemented the address the parties' safety and the mediator's safety.
Mediators can achieve this by taking a few of the following suggestions:
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Large and spacious boardrooms that allow for easy and unencumbered escape, should the need present itself;
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Large boardroom tables that limit immediate contact; and
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Mediators should address exit areas, safe waiting areas, and what to do in an emergency, etc., during their opening statement.
It is important for a mediator to pre-screen each party during the intake process. This will help the mediator determine the eligibility of a case for mediation and whether the mediator believes domestic abuse to be involved.
Once the mediator has determined the matter is suitable for mediation, it will be up to the mediator to use special techniques to balance the power. Without a balance of power, mediation will not be a suitable means to settle a dispute.
It is also suggested that a mediator utilize caucus as needed. Private meetings will give each party a break from the other. It is also a good time to address any fears or concerns with each party.
According to the Ontario Association for Family Mediation, mediators dealing with domestic violence should adhere to the following guidelines.
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Obtain training about abuse and become familiar with the literature.
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Never mediate the fact of the abuse.
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Never support a couple’s trading non-violent behaviour for obedience.
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Set ground rules to optimize the protection of all parties
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When appropriate and possible, arrange separate waiting areas and separate arrival and leaving times, permitting the victim to arrive last and leave first with a reasonable lag in time for safety purposes.
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Use separate meetings throughout the mediation process when appropriate, necessary, and/or helpful.
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Consider co-mediation with a male/female mediation team as an option.
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Allow a support person to be present in the waiting room during screening and/or during the mediation session.
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Maintain a balance of power between the couple, and, if this is not possible, terminate the mediation process and refer the couple to an appropriate alternative. Such alternatives might include shelters, therapists, abuse prevention groups, and attorneys.
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Where fairness of outcome may be an issue, the mediator should refer the clients to their counsel, financial advisor, support person, or other relevant resource for information and advice.
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Terminate the mediation if either of the participants is unable to mediate safely, competently, and without fear or coercion. Precautions should be taken in terminating to assure the safety of the parties. For example, the mediator should not reveal information to one party or to the court that could create a risk for the other party.
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Consider offering a follow-up session to assess the need for a modification of the agreement.
It is important to always deal with a qualified and experienced mediator in the area of power imbalances and domestic violence. A mediator may feel the need to introduce other professionals such as psychologists to help deal with abuse issues.