Over the last two decades, mediation of family law cases has become well-established in American courts. As mediation has grown, experts have recognized that power imbalances between couples may interfere with mediation. This imbalance is particularly evident where one partner has been abusive to the other. Widespread consensus has developed that decisions about whether mediation is appropriate are particularly crucial and delicate when domestic violence is present. Despite this consensus, there is evidence that courts are still ordering couples who have experienced domestic violence to mediate their family law disputes with little or not particularized examination of the couples' circumstances.
This Article begins by exploring and explaining the risks of mediating cases where a power imbalance exists between the disputing couple, particularly where domestic violence is present. Rather than engaging in the often polarizing debate about whether domestic violence cases should be mediated, the Article seeks to re-frame the debate by improving understanding about the meaning of both mediation and domestic violence in this context. It describes the consensus that has been reached among courts, legislatures and academics that domestic violence cases require special treatment in the mediation context in order to protect victims of such violence. It also analyzes the court rules and statutes as well as recent research suggesting significant failures in effectively implementing such statutes. Finally, the Article offers some proposals to improve the ability of both attorneys and courts to screen for domestic violence. The adoption of these proposals should narrow the gap between theory and practice in this area and fulfill the promise of better protecting and empowering domestic violence victims.
Jane C. Murphy & Robert Rubinson, Domestic Violence and Mediation: Responding to the Challenges of Creating Effective Screens, 39 Fam. L.Q. 53 (Spring 2005)