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Mandatory Custody Mediation: Empirical Evidence of Increased Risk for Domestic Violence Victims and Their Children

NCJ Number
Date Published
56 pages
This article reports on a study of mandatory mediation outcomes in child custody disputes where domestic violence has been an issue.
Evaluations of mandatory mediations in child custody disputes are rare because of the confidential nature of the mediation process. It is important, however, to evaluate the usefulness and equity of mediation when domestic violence has been present between the two parties who are seeking resolution of a child custody dispute. Opponents of the use of mediation when there has been a history of domestic violence suggest that the balance of power between the two disputing parties is not equitable, making mediation an undesirable resolution technique. In this study, the authors sought to evaluate the mediation process and outcomes when it is used in cases where there has been past record of domestic violence. Content analysis was conducted on a sample of 200 mediations in San Diego County, CA, in which there were indicators of domestic violence in the case file that was available to the mediator. These cases were compared to a control group of 200 mediations from the same county, in which no indicators of domestic violence were in the file available to the mediator. Results revealed that, first, the court screening form that was used prior to mediation often failed to screen for domestic violence or abuse. Second, even when domestic violence was noted as a problem in the case file, during mediation the domestic violence was not addressed in many of the cases. Most alarmingly, the results revealed that when domestic violence is brought up as an issue during mediation, the victim of domestic violence and her children received no more protections, and sometimes even fewer, than cases in which domestic violence was neither noted nor discussed. This leads to the conclusion that victims of domestic violence who are mandated to child custody mediation would be better served to remain silent about their victimization. As such, the authors conclude that mandatory custody mediation disadvantages women who are victims of domestic violence and places their children in continued peril. Recommendations include the use of an opt-out provision for domestic violence in States where mandatory custody mediation is utilized. 57 Footnotes

Date Published: January 1, 2003