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What if domestic abuse has been part of the family dynamic? Can mediation still be an appropriate way forward?

Mediation is often the most effective way of resolving disputes, allowing all parties to move forward with their lives quickly and efficiently and at a fraction of the cost of court proceedings. But what if domestic abuse has been part of the family dynamic ? Can mediation still be an appropriate way forward?

What is domestic abuse?

Domestic abuse is wide ranging but often defined as an incident or pattern of incidents of controlling, coercive, threatening, degrading and/or violent behaviour. Such behaviour is not uncommon and the power imbalance that exists within the relationship can be profound. It is often that power imbalance that leads many to disregard the option of mediation as a possible means of dispute resolution, but should that necessarily be the case?

What are the concerns for mediation?

Family mediation requires all parties involved to engage in shared decision-making, honestly and openly, and arrive at consensual resolutions. But the question often posed is how that objective can be reached if the balance of power within a relationship is so one-sided or the abused partner feels stifled to the point where they are unable to express themselves and their needs fully if at all. There is also the issue of how the process is conducted and whether bringing the couple together, perhaps for the first time since their separation, will expose the abused partner to risk or otherwise trigger further contact and harassment.

These are undoubtedly difficult issues to assess although not necessarily insurmountable when considering the suitability of mediation and whether, on balance, it could be more beneficial than harmful particularly when considering the alternatives.

Solutions

Abuse exists over a continuum and whilst most proponents of mediation would accept that there are some cases where mediation would never be appropriate, there are some where mediation may be productive and more helpful than not.

The suggestion that the power imbalances that exist within these relationships can never be overcome ignores the ability of a trained family mediator to rebalance this, allowing each equal time and opportunity to fully express themselves. It also dismisses the opportunity for each to be directly supported in the mediation process by a team specially constructed around them whether in the form of their legal or financial advisers and or counsellors through Integrated or Hybrid working.

It is often assumed that mediation must take place in person or with the couple sitting next to each other or within the same room. This, however, ignores the flexibility of the process and the various opportunities afforded by video meetings and shuttle mediation. These processes, and if necessary, in combination, can remove the need for the couple to be present in the same room or building or even see or speak to each other.

Other benefits

Litigation and other adversarial processes often result in a defensive response from abusers which in turn makes it difficult, if not impossible, to address issues of help or treatment in any effective way. Mediation, however, can provide a safe neutral platform to discuss strategies and solutions that can help break cycles of abuse, particularly when carried out in conjunction with other therapeutic approaches.

Whilst there will undoubtedly be cases of domestic abuse that render family mediation unsuitable, there is certainly no clear case for a blanket rejection of family mediation in all cases where domestic abuse arises. To do so would be to exclude many families dealing with domestic abuse from a process with the potential to enable them to break the cycle and move on with their lives quickly and efficiently.

For more information about using mediation in cases involving domestic abuse, please contact our team of family mediation lawyers.

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