Sunday, March 14, 2010

Divorce Mediation and Domestic Violence

Periodically, my daughters send me an article they think I will be interested in. My younger daughter recently sent me an article from Slate by Mary Adkins entitled, "Breaking Up Is Hard Enough To Do Why don't courts offer mediation to victims of domestic violence getting a divorce?" You can see the entire article at Ms. Adkin’s premise is "Domestic violence brings women to court seeking protective orders ... (b)ut 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."
Ms. Adkins makes a strong case for divorce mediation when she say, "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 important, 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."
She goes on to quote Oregon's "plan and protocol" for dealing with victims which 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."
In essence she feels that evaluative mediation works better in cases of domestic violence than facilitative mediation. She contrasts facilative mediation where, "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." This compares to evaluative mediation where the "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."
Domestic violence is always a challenging issue for mediators. Some mediators won’t mediate a case with domestic violence. We try to screen for it but I am not sure we always are made aware of it. If we do find it, we always question the party further to make sure the party feels safe and can participate in the mediation without feeling intimidated. If we decide to mediate, we will stop the mediation at anytime we feel domestic violence is effecting the process. When I did domestic violence training, I remember the instructor talking about the "look." It was classical conditioning. The spouse only had to hit the other spouse once. After that the spouse only had to give the other spouse the "look." It is like an invisible fence for dogs. In retrospect, I realize that I have been doing more evaluative mediation in divorce mediation cases where domestic violence is an issue. I believe divorce cases where there has been domestic violence can be mediated but it takes a highly skilled and trained mediator whois using the right style of mediation.
As always, you can post any comment about this blog or Divorce Mediation or Divorce by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at WM (169) 3/14/10

Wednesday, March 3, 2010

Cohabiting and Divorce

Over the years I have seen many couples get married for the wrong reasons. They often think that marrying will save the relationship. They often have a child for the same reason. I was reminded of this by the article in the March 3, 2010 New York Times by Sam Roberts entitled, "
Study Finds Cohabiting Doesn’t Make a Union Last" You can read the entire article at Mr. Roberts writes about a study done by
the National Center for Health Statistics using data from the National Survey of Family Growth conducted in 2002. He says, "Couples who live together before they get married are less likely to stay married, a new study has found. But their chances improve if they were already engaged when they began living together. The likelihood that a marriage would last for a decade or more decreased by six percentage points if the couple had cohabited first, the study found." Interestly, he goes on to report that "Half of couples who cohabit marry within three years...If both partners are college graduates, the chances improve that they will marry and that their marriage will last at least 10 years." Mr. Roberts or the study don’t say why this is the case for non college graduates but it I think it may be as I said that they are trying to fix an already broken relationship. I have also noted that marriage may change a relationship. I knew a couple where the woman was in control when they were living together and the man was in control when they got married. I also know that people often behave one way in order to get married and then behave differently when they do get married. This is another reason why I strongly advocate premarital counseling and a more wide spread process for letting divorcing non married couples. What are your experiences? Share them with us and perhaps help a couple from making the wrong decision. One last comment, the article also notes that in general one in five marriages will dissolve within five years. On in three will last less than ten years.
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at WM(168) 3/3/10