Mediation has become commonplace in American family courtrooms as a means to reduce the burdens of divorce proceedings and encourage mutual agreement. In a number of jurisdictions, mediation is mandated in some types of divorce cases. Mediation involves a neutral third party who serves as an intermediary between divorcing couples; their exact role depends on the jurisdiction’s policies, but they serve to encourage a mutual agreement on divorce, parenting, or both.
Some have cautioned that mediation may not be ideal for divorcing couples when intimate partner violence is involved. Some reasons cited are worries that mediators may not be trained to identify or respond to intimate partner violence, concerns over victim protection during and after proceedings, and whether the process is voluntary and fair if intimate partner violence is present.
An NIJ-funded study addressed this issue by examining a sample of 965 couples attending mediation in Pima County, Arizona, for the purpose of resolving custody and parenting disputes. The study had four primary goals. First, it aimed to determine whether mediators accurately identified intimate partner violence and whether these cases were treated differently. Second, it examined whether divorce decrees or mediation agreements included safety provisions in cases with self-reported intimate partner violence. Third, it looked at the impact of mediation on whether or not the couple involved re-litigated their divorce settlement divorce decrees. Finally, it assessed a variety of factors (e.g., intimate partner violence, marital stress, child-maltreatment) thought to impact mediation, divorce, and post-divorce outcomes.
Based on self-reports by both parents, the researchers found a significant amount of intimate partner violence. Based on a semi-structured clinical interview with each of the parents individually, mediators identified intimate partner violence in 59 percent of cases based on the clinical interview. The researchers concluded that mediators identified many, but not all, cases of self-reported intimate partner violence and suggested that classification based on a nonsystematic, semi-structured interview may not be the best method for identifying intimate partner violence. They further found that safety accommodations were provided most frequently for those participants who specifically requested it and that only about 19 percent of all couples received at least one accommodation, despite a much higher prevalence of intimate partner violence overall.
In regard to the relationship between intimate partner violence and custody agreements, higher levels of intimate partner violence were associated with a lower likelihood of a full or partial agreement being reached. Further, mediated agreements rarely restricted parenting or contact between parents. Even in the cases with the highest levels of intimate partner violence, restrictions were present in only about half of the agreements. Researchers also discovered that formal legal findings of domestic violence within the divorce file were rare, but when present, carried additional safety restrictions between parents and on parenting. However, the most common parenting agreement, regardless of intimate partner violence, was the mother as primary physical custodian with joint legal custody. The majority of couples (62 percent) in the study returned to court to re-litigate some issues, and a small proportion of the couples were responsible for most of the visits.
Finally, researchers learned that relationships between marital stress, intimate partner violence, child maltreatment, and custody/mediation agreements are complex. For example, marital stress was linked with increased perpetration of intimate partner violence and a lower likelihood of reaching an agreement through mediation. Further, there were differences based on whether the mother or father was the perpetrator. In cases in which mothers were reported to engage in higher levels of intimate partner violence, fathers were more likely to obtain a legal finding of domestic violence, compared to when fathers perpetrated intimate partner violence. These legal findings also increased the likelihood of a protective order being filed by the father.
Given their conclusions that a nonsystematic, semi-structured interview may not be the best method for identifying intimate partner violence and the infrequency of safety provision being included in mediated agreements, the researchers offered a number of policy recommendations. They suggested that mediators, judges, and court staff be trained in the dynamics of intimate partner violence and that a systematized assessment of it be adopted for divorce mediation. They also proposed an investigation into a hybrid mediation/arbitration model that could force creation of binding agreements. They further recommended that outcomes for children be considered in both the long and short term, and that currently implemented case management programs for couples frequently using the court system post-divorce be examined for their efficacy.
About This Article
The research discussed in the article was conducted by Connie J.A. Beck, Michele E. Walsh, Mindy B. Mechanic, Aurelio Jose Figueredo, and Mei-Kuang Chen. This study was supported by funding from the National Institute of Justice, grant number 2007-WG-BX-0028, awarded to the University of Arizona and California State University, Fullerton.
This article is based on the final report, “Intimate Partner Abuse in Divorce Mediation: Outcomes From a Long-Term Multi-Cultural Study,” (pdf, 238 pages).
Cite This Article
National Institute of Justice, “Mandatory Divorce Custody Mediation and Intimate Partner Violence/Abuse” Month DD, 2018, NIJ.gov: https://nij.gov/topics/crime/intimate-partner-violence/Pages/mandatory-divorce-custody-mediation-and-intimate-partner-violence.aspx
[note 1] While not directly related to intimate partner violence, understanding the impact of mediation on re-litigation rates could be valuable for policymakers considering funding mediation programs.