Mediation and Domestic Violence

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Mediation and Domestic Violence Robin Hassler Thompson, JD, MA Robin H. Thompson & Associates August 2016

Introduction & Basics  Let’s make it a conversation  We are all students and all teachers  Prior experience with domestic violence

and mediation?  What are your questions and

expectations?

Goals for Today  We will cover:  DV in Context of Mediation  Understanding DV, including trauma  Discovering DV  Impact of DV  Safe and effective strategies

Goal of Mediation  Both parties  Equally work toward  A common goal

 HOWEVER, in domestic violence cases:  Reluctance/opposition by one party  Equality absent

 No common goals (safety/relationship end vs.

continued control)

Context is Everything  Power differentials – the root of it all  Familiar concept – where do you see power

imbalances outside of DV?  Employment situations

 Parent and adult child  Language fluency/ability  Financial disparities

 Legal representation on one side  Other?

Balancing Power  Strategies you use now to overcome power

imbalances  What about threats of physical violence?  Stalking?  Cyber stalking?  Intimidation – witness intimidation?

 Threats and coercion?

Mediation and DV  Never?

 Sometimes?

 Always if sent by court?

Economic Security = Safety

 No safety without economic resources  No recoupment of economic losses  No healing; healthcare, counseling

 No participation in legal process  No protection of children  No securing of employment, education, housing  No resilience across the lifespan

Economic Impact of Abuse

 Job loss or lost wages

 Leaving or dropping out of school  Eviction and damaged tenant history  Loss of personal property  Debt from associated costs (health,

relocation, security systems)

When?  Family law  Injunctions for protection  Small claims court  Business/contract disputes  Landlord/tenant  Other?

How do you know?  In referral documentation  Revealed by parties at intake  Your intake – you ask directly  You see court records – background search  You detect or suspect after you start  Other?

Screening  Who does it and how?  Risk assessments – physical and emotional safety of

survivor and children – Who does this?

 Incorporate economic-related questions at intake and

during interviews to:

 Assess the economic impact of abuse/violence  Determine if survivors were victims of economic

crimes

 Connect to the proper resources

Be Trauma-informed 

Remember power imbalance



Understand impact of Trauma  Trauma informed mediation – what is it?  Impact on brain/history of trauma  Impact of trauma on children  How to respond  “Tell me about you.” “What happened to you?”  “What are you seeking in mediation?”  Examples  Stories are incomplete/change/inconsistent

Safety Safety Safety  Most dangerous time = separation  Mediating separation = most dangerous time  Survivor is expert

 Don’t minimize or deny prior violence  Physical and emotional  Adults and children  Suicide, homicide, filicide

Fatality and Lethality  Prior DV history  Use of alcohol and/or drugs  Morbid jealousy

 Threats (to harm self/others)  Presence or access to guns  Thumbs nose at “system”  Desperation – employment, etc. (Campbell)

Safety Planning  What is Safety Planning?  Why it is important.  Ongoing nature of safety and danger

assessments  Clients and staff  Advocates can do thorough ones

Elements of Safety Plan  Map for victim to be safe

 Can do mini for mediation process in concert with

advocate

 Assure mutuality, working with (not for/dictating to)

survivor

 Discuss and write down resources (DV center), listing of

emergency/helping contact numbers/people, safe place for victim to go, access to funds, copies of important documents, discussion of barriers to implementation (e.g. pets)

 Make sure not accessible by abuser

Cultural Competence  More than “different culture” i.e. ethnicity  Includes language, experience, religion, as

well as race, gender, sexual orientation, and any combination of the above  Interpreters? Language, sign  Family support and roles in the context of

culture

Abuse by Litigation  Frequent/constant reality  Way to control, usually by financially able

abuser  Promotes continuation of contact  Way to intimidate/control spouse

 Mediation is a part of  Economically harmful to survivor

Family law mediation rule 

In circuits where family mediation is established and the court finds there is a dispute



And there are issues of custody, visitation or other parental responsibility



Court shall refer to mediation



BUT upon motion of either party



Court shall not refer if it



Finds a history of domestic violence



That would compromise mediation process (s.44.102(8)(c) FS)

“Safe” Ways to Mediate  Only examples – none may be truly safe  Shuttle mediation  Multiple sessions  Over the phone  Mediate separately  Other options

One on one with victim 

Speak slowly, relaxed, calmly



Don’t touch without consent



Listen and acknowledge person’s story “I’m hearing that sounds really scary.” empathize



Don’t block exits



Don’t tower over



Don’t crowd them



Don’t cross arms/hands on hips (keep open body posture)



Keep hands out of pockets



Don’t challenge assertions that are hard to believe



State what we know (that’s not something I know very much about)



Ask if you can give referral info to dv center, etc.



Avoid abrupt movements



If necessary, know to ask for help



Breathe and just relax

Mediation scenarios 1. DV known before (injunction now) 2. DV known before (injunction from past) 3. DV unknown (detect during mediation) 4. DV unknown (one party agrees to

everything) 5. DV unknown (discovered, must end)

Termination of mediation

 What to say when you think not safe to

proceed  Because DV present and party cannot participate

 What you can tell court  “No Agreement was reached”

 Cannot disclose presence of DV per

rules

Termination - continued  What you can tell parties

 Cannot lie – but can say “We are not

making progress.” “We need to stop today.” “It is my belief this needs to go to judge.”

 Offer information, resources to party (local

dv center, legal services, brochures, etc.)  Not in front of abuser, no materials if could endanger victim  ASK – what do you need?

About Injunctions  Applies to: domestic violence, repeat violence, dating

violence, sexual violence, stalking

 CANNOT mediate issue of whether DV occurred or is

imminent – Court MUST decide this (12.610(c)(1)(C) Fam. Ct. Rules

 Why? Forces survivor to negotiate it to obtain relief  Dire economic and safety implications  Can jeopardize future rights and relief for survivor  No such thing as “Chapter 61 injunction”

More About Injunctions  Judge also must decide:  Contact, use of residence, custody, visitation, child

support and spousal support  Parties – with a “certified family mediator” can

mediate terms  All parties must consent  Judge must rule on these afterward  If no agreement, court decides

Remember to:  Have a set agenda

 Have clear ground rules regarding key issues, below  Make sure there are breaks – parties are out of eyeshot and

earshot – i.e. always separated

 Allow attorney or advocate for survivor  Ask survivor what kind of safety s/he might need  Monitor/conduct/encourage ongoing safety planning

 Ensure survivor arrives 10 min prior and leaves 10 minutes

prior

Remember to:  Have separate waiting areas  Inform parties re stopping mediation anytime  Check with survivor about ability to freely

negotiate  Ask YOURSELF if situation changed and if a

party cannot freely negotiate  Never negotiate dismissal of injunction

Remember to:  Provide resources (local DV program,

batterer’s intervention program, legal services, etc.)

 Make final agreement detailed, clear,

and unambiguous to avoid possible manipulation/litigation abuse

Resources Florida Domestic Violence Hotline - (800) 5001119 Florida Coalition Against Domestic Violence (FCADV) www.fcadv.org (850) 425-2749

Florida Rape Crisis Hotline (888) 956-RAPE (7273) Florida Council Against Sexual Violence (FCASV) www.fcasv.org

National DV Hotline  1−800−799−7233 or

 TTY 1−800−787−3224

 http://www.thehotline.org

Questions? 

Contact information:

Robin Hassler Thompson  [email protected]  850-907-0693

THANK YOU!

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