Breaking Up Is Hard Enough To Do

Why don’t courts offer mediation to victims of domestic violence getting a divorce?

David Johnson

The woman who David Paterson may have intimidated from going to court wasn’t married to David Johnson, the Paterson aide she says choked her and smashed her into a dresser. But for every five married women, one is married to an abusive spouse. Domestic violence brings women to court seeking protective orders, as in the Paterson mess—and also divorces. But when women who say they’ve been beaten up try to end their marriages, they find themselves at a disadvantage. In family court, they probably won’t be offered mediation—the cheaper, less antagonistic alternative to litigation.

By denying this option to women who report spousal abuse, the state is trying to protect them. That assumption, which came out of the battered women’s movement 20 years ago, made some sense at the time. But it no longer does.

Virtually every state today offers some form of court-sponsored mediation to couples seeking divorce. Introduced in the late 1980s and early 1990s, mediation grew popular for fairly straightforward reasons. It costs less than litigation—couples save upward of 40 percent in attorney’s fees. It does not require lawyers. And it’s faster, saving money for the state as well. More importantly, research has shown that mediation leads to less bitterness, keeping the period of conflict short, which is better for children. Research also suggests it yields better outcomes for both parties, though better in different ways—women get more property and more financial support, while men are more likely to get shared custody or more visitation time with children.           

Satisfaction rates for mediation are notably higher than they are for litigation, with 77 percent of couples satisfied with mediation. Compare this with a 40 percent satisfaction rate and a 50 percent to 70 percent dissatisfaction rate with litigation. And critically, satisfaction rates for mediation are as high for couples with violence in their past as they are for others. (We know this because many victims do not report violence, and so a surprising number end up in mediation anyway.)

By contrast, litigation—the only alternative to mediation—can put victims in a pretty grisly position. Imagine a domestic-violence victim who brings a divorce action against her spouse in which neither is represented by a lawyer, as occurs in the vast majority of divorce filings. The victim may need to present evidence about the history of violence to establish fault as a grounds for divorce or alimony. If the victim testifies to the abuse, she often faces cross-examination by her abuser. He is free to challenge her, question her, and suggest she is to blame in open court. That is his right, but the effect can be traumatic, and not just in a way that lasts for a day or a week, but rather for years, according to women who have been through it.

So why do states exclude domestic-violence victims from divorce mediation? Fearful that victims of abuse would be forced into small rooms with their batterers to negotiate the high-stakes matters of divorce—custody, visitation, financial support, and property distribution—victim advocates and feminist scholars pushed to shield battered women from mediation at the time the states were rapidly adopting it. States and courts across the country responded by enacting statutes and policies presuming mediation dangerous for victims of domestic violence. Oregon’s “plan and protocol” for dealing with victims, for example, states that “when domestic violence is present among parties in a dispute, the abuser’s desire to maintain power and control over the victim is inconsistent with the method and objective of mediation. Fear of the abuser may prevent the victim from asserting needs.”

The problem is that two decades later it is clear that shielding victims from mediation is not doing them any favors. To be sure, private mediation poses certain dangers for these women. But most family courts today use a different model that’s a better fit. In private mediation, face-to-face participation is considered crucial. The mediator does not offer opinions or recommendations. His limited role, in the face of a gross power disparity, can leave victims vulnerable to bargaining away financial support, assets, even custody, all out of fear.

But in most court mediation programs, mediators are more active. Trained to attend to power imbalances, they offer opinions on fairness and predict how a case will play out at trial. The mediator is charged with preventing exploitative agreements, and the statistics about satisfaction and outcome suggest they do a pretty good job. All agreements coming out of mediation are reviewed by a judge. And in cases with a history of violence, states can mandate shuttling—where the parties sit in separate rooms—rather than face-to-face meetings. California does this at the request of the victim.

In many states, however, victims are never allowed into mediation rooms, or they must jump through all kinds of hoops to get there. I know a victim who asked to mediate with her attorney present, because she was exhausted from a series of hearings about visitation that she saw as pulling her needlessly from her job. The answer? A flat, “We don’t mediate domestic violence cases.” Another victim told me that 10 years later, being cross-examined during her divorce remained the worst experience of her life.

To be sure, the court-mediation model works for domestic-violence victims only when safeguards like shuttling are in place. But the precautions are fairly easy to implement—screen for domestic violence, ensure that mediators are attending to power imbalances, and if necessary conduct the mediation in separate rooms. In the 1990s, before it was clear what court mediation would look like, victim advocates had reasons to be wary. But now we know that shielding victims from mediation is likely hurting rather than helping. It’s time to let them into the room.

A longer version of this piece will be published in the Yale Journal of Law and Feminism later this year.

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