Introduction and Definitions
Mediation is a negotiation conducted by a neutral third party to resolve differences and reach agreements between two or more people or organizations. Many types of mediation exist. Mediation goals may include such things as improved communication; increased cooperation; reduced anger and hostility; healing; transformation of people, families, organizations, and communities; and assessment of strengths and weaknesses of legal positions.
Over the last decades of the twentieth century, an ever-growing tide of businesses, organizations, governments, and individuals have been steadily turning away from the rigid, gridlocked, adversarial criminal and civil justice litigation systems in hopes of finding new efficient, low-cost, low-stress, lasting mechanisms for resolving conflict and reducing crime. Two of those mechanisms incorporate mediation. One is alternative dispute resolution (ADR), which includes methods like mediation, arbitration, and domestic relations decision making. The second is restorative justice (RJ), a philosophy advocating that the most effective way to reduce conflict (especially crime) is by actively engaging victims, offenders, and the community in some form of dialogue or mediation.
While the goal of mediation is to enhance the relationship between those in conflict, the goal of litigation is to settle a conflict. Even so, they are not mutually exclusive. The civil and criminal justice litigation systems use mediation as a replacement for, as well as in addition to, usual legal processes. In the civil justice system, mediation occurs primarily in domestic relations (divorce) courts. Not only are judges in these cases increasingly likely to order mediation in domestic relations cases, but rising numbers of divorcing couples are hiring their own mediators to help them reach divorce agreements that they take with them to court. Recently, courts have begun to use mediators in permanent protection order proceedings called Restraining Order Conditions Shuttle Conferences (ROCSC). Even when there is a permanent protection order in effect, most people must have some ongoing contact. Rather than face-to-face discussions, the two people are placed in separate rooms while the mediator ‘‘shuttles’’ between them as they work out an agreement. The purpose of these shuttle conferences is not to mediate the violence, but to help the parties negotiate the conditions of the permanent protection order as it relates to children and necessary future contact of the parties. The paramount concern of the process and the resulting agreement is present and future safety. The agreement is then reviewed and accepted, rejected, or modified by the judge.
In the criminal justice system, restorative justice mediation, such as victim–offender reconciliation, community accountability boards, and sentencing circles, is becoming increasingly common. During these mediations, the victim and offender meet faceto- face with a mediator/facilitator (and often, with family and community members) to discuss the crime, the harm done to the victim, the offender’s responsibility, the reparation of that harm, and reintegration of the offender into the community.
Support for Litigation Only
After centuries of struggle, women have gained access to the legal system, enabling them to divorce, stop sexual harassment, and have batterers and rapists held accountable for their crimes. Many argue that just as females gain more power in the courts, those in authority have tried to trivialize issues faced by females and eliminate their access to effective legal remedies by implementing alternatives or add-ons to the justice system that critics say benefit victims less and exact fewer consequences for offenders.
Most domestic violence victims’ advocates argue that the courts are physically safer because of metal detectors and searches as well as the diversion of some of the abuser’s aggression away from the victim and toward the judge, attorneys, and other court personnel. They say it is also legally safer. Although there are countless complaints that mediators, judges, and attorneys lack basic education about domestic violence and hold negative views of females and their role in society, attorneys must at least know the law and are sworn to uphold it. While many mediators have voluntarily obtained mediation training and experience, there are no standards or requirements at the national or, in most cases, state level. Litigation is also safer because it sets legal boundaries and procedures, which, along with legal outcomes, are open to the public. Mediations are conducted in private and their proceedings are confidential. Finally, if the legal rulings or processes are flawed, higher courts can overturn the decisions.
Additional safeguards and advantages of litigation include the fact that courts can impose legal remedies and sanctions such as orders of protection, incarceration, restitution, and fines along with decisions about child custody and property division. Furthermore, unlike many agreements reached in mediation, the batterer’s failure to comply with court orders may result in further sanctions (e.g., incarceration) by the court.
Support for Mediation
Mediation, according to its proponents, provides a nonadversarial opportunity for two or more parties, with the help of a neutral third party, to talk with each other with the aim of ironing out their differences and improving their relationships. The hope is that in the future they will be better able to work things out themselves. Instead of speaking through an attorney while being processed through the litigation system, mediation provides people an opportunity to engage in a discussion that fits their needs. Furthermore, there is mounting evidence that those who engage in mediation are more satisfied with the results and are more likely to stick to their agreements than people who use the litigation process.
Unlike the justice system, when mediation is used in a restorative justice context, it requires that the offender take full responsibility for abusive and/or violent behavior in front of those harmed. There is also an attempt to heal broken relationships and to strengthen the community so that all parties can move into more productive relationships.
People must feel sufficiently safe before, during, and after mediation or litigation to divulge information that will help in making decisions. Although significant steps have been initiated to increase safety, there is much criticism of both litigation and mediation for putting people in danger by failing to take domestic violence seriously.
Urban courthouses have become virtual fortresses, chiefly because of domestic violence–related murders occurring in justice centers over the past several decades. However, not only do these safeguards not exist in many rural areas, but the first place that most attorneys, prosecutors, or mediators meet their clients is in private offices that do not enjoy such safeguards.
Many mediators and attorneys screen for domestic violence. Because most clients will not or cannot acknowledge the nature or extent of the violence or abuse they have experienced or meted out, the effectiveness of screening is limited. Those who advocate litigation say that this is another reason to rely on litigation rather than mediation. If the domestic violence remains hidden, more safeguards exist through the litigation process.
Most mediators back victim advocates who state that there should be no mediation in cases where there is ‘‘severe,’’ ongoing domestic violence. Disagreement arises when some suggest that only ‘‘milder’’ cases be mediated. These ‘‘milder’’ cases may include such things as a nonrecurring incidence of pushing or shoving years ago or violent threats without actual physical violence. Victim advocates say that these may be danger signs of brewing violence or a perpetrator’s tactic in the cycle of violence, while mediators maintain that mediation will help people leave the past behind and move to more positive ways of interacting.
Mediators who are knowledgeable about domestic violence employ safeguards—such as helping victims develop safety plans—and conduct ‘‘shuttle’’ mediations, enabling people to speak freely, suggest options, express concerns, and ask for help they may have been too frightened or intimidated to give voice to if the two parties had to sit in the same mediation room or courtroom together.
There is little real protection once the victim leaves a secure location. Advocates of mediation submit that litigation is inherently adversarial, and therefore parties ‘‘win’’ or ‘‘lose.’’ When this happens, the ‘‘loser’’ is likely to seek revenge, placing the victim and the community in more danger. Mediation advocates maintain that when both participate in deciding about issues affecting their lives, the perpetrator is less likely to retaliate; therefore, by avoiding the win/lose scenario, the victim is safer.
A key ingredient to successful mediation is the mediator’s neutrality or ‘‘balancing’’ of power between the people engaged. The abuser typically holds more psychological and financial power in the relationship; therefore, the mediator attempts to decrease the abuser’s psychological power while enhancing the victim’s. Remaining neutral while attempting to shift power from one person to another is difficult enough, but professionals in most fields have long agreed that no one is truly neutral about anything.
It is not just lack of neutrality that many victim advocates fear about restorative justice’s community accountability boards, sentencing circles, and similar processes. Victim advocates allege that many community members who take part in these processes are inclined to excuse the behavior of the batterer, force the victim to take responsibility for the batterer’s abuse, and therefore increase the likelihood of further violence. Critics also say that asking victims of domestic violence to meet with their attacker will likely cause further psychological harm, thus re-victimizing the victim.
To take full advantage of either litigation or mediation, people must have information that is meaningful to them. This rarely happens. Most people who come into contact with the civil or criminal justice systems do not have attorneys, have obtained their knowledge of litigation from friends, family, TV, and the movies, and have no awareness of mediation. They obtain information about mediation at the courthouse, where the stress of the situation at hand, coupled with short timelines and lack of written material or help with understanding their options, leaves people with limited comprehension of the mediation process or possible outcomes.
Likewise, attorneys, courts, mediators, or the people involved in the conflict rarely have all the facts related to the case. In mediation, the parties are asked to voluntarily divulge information as they negotiate agreements. During litigation, court orders, along with penalties for noncompliance, are likely to produce more information from those wishing to hide something.
Time and Expense
Few people can afford an attorney or mediator. While some courts have access to volunteer lawyers and mediators, there are not enough to meet the need. Wealthy people hire their own high-powered attorneys and mediators and take as long as they need to reach agreements. Poor people, on the other hand, must use the volunteer or court-appointed mediators and attorneys when they can get them. The judge gives them a set time, possibly by the end of court that day, to reach an agreement. If they do not reach an agreement, they must come back to finish the case. This means incurring additional costs such as lost wages for missing another day of work, child care, and transportation. Thus, the effectiveness of mediation for the poor may be diminished as it becomes another tool of assemblyline justice.
Both litigation and mediation may extend the nature and extent of conflict. The batterer, whose financial resources usually far exceed the victim’s, may manipulate mediation or litigation in a way that shifts his abuse to a new and more devastating level. Even when the batterer does not engage in these tactics, the costs and strains of navigating litigation and mediation may be beyond the emotional and financial resources of both the victim and the batterer.
Arising from the abuser’s need to gain power and control over the victim and everyone else in his environment, domestic violence is complex and often deadly. Information is mixed about whether mediation, at a minimum, will ‘‘do no harm’’ or, at its best, will help those involved in domestic violence. Due to the complexities of domestic violence, the inadequacy of screening tools, and flaws in both mediation and litigation systems, particularly regarding the difficult task of finding mediators, attorneys, and judges who are well qualified to handle such cases, neither litigation nor mediation is a panacea. Because mediation is an ever-growing philosophy promising great benefits, and because legal systems are feverishly searching for alternatives as their budgets are cut, there is a clear need for the development of safe and effective court and community interventions that are directly linked to victim-based research.
- Cameron, A. Restorative Justice: A Literature Review. British Columbia Institute Against Family Violence, Vancouver, B.C., Canada, April 2005. http://www.awanbc.ca/Restorative_Justice.pdf.
- Coker, D. ‘‘Enhancing Autonomy for Battered Women: Lessons from Navajo Peacemaking.’’ UCLA Law Review 47, no. 1 (1999): 1–111.
- Coward, S. ‘‘Restorative Justice in Cases of Domestic and Sexual Violence: Healing Justice?’’ 2000. http://www.hotpeachpages.net/canada/air/rj_domestic_violence.html.
- Edwards, A., and Susan Sharpe. ‘‘Restorative Justice in the Context of Domestic Violence: An Annotated Bibliography,’’ 2004. http://mrjc.ca/documents-publications/restorative-justice-domestic-violence/restorative_justice_DV_Lit_Review.pdf.
- Frederick, L., and K. C. Lizdas. ‘‘The Role of Restorative Justice in the Battered Women’s Movement.’’ Battered Women’s Justice Project, 2003. http://www.bwjp.org/files/bwjp/articles/Role_of_Restorative_Justice_Battered_Women’s_Movement.pdf.
- Hart, B. J. ‘‘Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation.’’ Mediation Quarterly 7 (1990): 317–330.
- Johnson, N. E., D. P. Saccuzzo, and W. J. Koen. ‘‘Child Custody Mediation in Cases of Domestic Violence.’’ Violence Against Women 11, no. 8 (August 2005): 1022–1053. Mayer, B. The Dynamics of Conflict Resolution. San Francisco: Jossey-Bass, 2000.
- Mickish, J., and M. Knapp. ‘‘Task Force Report on Safety, Justice and Mediation: Mediating Family Law Issues in the Face of Increased Violence against Women.’’ Presentation at Working Group on Mediation and Domestic Violence, Denver University School of Law, 1996.
- Mickish, J., and K. Schoen. ‘‘Restraining Order Conditions Shuttle Conference—Training Materials.’’ Colorado Bar Association, 2001.
- Moffitt, M. L., and R. C. Bordone, eds. The Handbook of Dispute Resolution. San Francisco: Jossey-Bass, 2005.
- Salem, P., and A. L. Milne. ‘‘Making Mediation Work in a Domestic Violence Case.’’ Family Advocate 17, no. 3 (Winter 1995): 34–38.
- Strang, H., and J. Braithwaite, eds. Restorative Justice and Family Violence. New York: Cambridge University Press, 2002.
- Taylor, A. The Handbook of Family Dispute Resolution. San Francisco: Jossey-Bass, 2002.
- Wheeler, L. ‘‘Mandatory Family Mediation and Domestic Violence.’’ Southern Illinois University Law Journal 26, no. 3 (Spring 2002): 559–573.