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!