Mediation is only safe and successful when both parties are capable of freely expressing their requirements. If one party is being abused, the mediation may be at best, unfair and at worst, unsafe. That’s why it’s crucial that attorneys and mediators follow the requirements for domestic violence screening before proceeding with mediation.
Experienced Highland Family Law Mediator Kathryn Wayne-Spindler recently attended an ICLE (Institute of Continuing Legal Education) Family Law Seminar regarding Michigan domestic violence screening procedures. The session, “Screening for Domestic Violence in Mediation” was presented by Lore A. Rogers of the Michigan Domestic & Sexual Violence Prevention & Treatment Board in Lansing and Rebecca E. Shiemke of the Michigan Poverty Law Program in Ann Arbor. The seminar stressed the importance of screening prior to mediation.
“Mediators are required to screen by SCAO standards and now by statute, and to continue to assess for throughout mediation process,” according to the ICLE materials that accompanied the session.
What the domestic violence screening looks for:
According to the Michigan Standards of Conduct for Mediators, “…reasonable efforts shall be made throughout the mediation process to screen for the presence of an impediment that would make mediation physically or emotionally unsafe for any participant, or that would impede the achievement of a voluntary and safe resolution of issues. Examples of impediments to the mediation process include: domestic abuse; neglect or abuse of a child; status as a protected individual or vulnerable adult; mental illness or other mental impairment; and inability to understand or communicate in the language in which mediation will be conducted.”
The attorneys and mediators should follow the procedures outlined in the, “DOMESTIC VIOLENCE SCREENING PROTOCOL FOR MEDIATORS OF DOMESTIC RELATIONS CONFLICTS.”
The protocol describes that mediators and attorneys should be looking for, “a pattern of behavior characterized by the use of various tactics, both criminal and non-criminal, to control and coerce an intimate partner by fear and intimidation, which may or may not be apparent to outside observers.”
Abusive and threatening behaviors many include:
- Acts or threats of physical or sexual violence
- Abuse of money or children
- Emotional or psychological control
- Threatening self-harm
- Interfering with work or educational opportunities
- Harming pets or property
- Enforcing strict household rules
- Restricting access to transportation or communication
The domestic violence screening process
The attorney or mediator should be conscious of the client’s need for privacy and provide a safe location for honest conversation. The mediator will most likely avoid interviewing both parties in close proximity. Before beginning the discussion, the attorney or mediator should explain confidentiality and inform clients of how their responses may be used.
The discussion should be comprehensive and include inquiry about possible physical, sexual, emotional or verbal abuse. The Power and Control Wheel may be utilized to suggest possible examples of abusive behaviors.
If domestic violence is discovered…
If domestic violence is disclosed and either the client or mediator senses that it is not safe for the abused party to return to the existing residence, the mediator may help the abused party seek help by either calling a domestic violence hotline or offering access to a phone for the abused party to call a friend or family member or law enforcement. If the mediation is discontinued by the mediator because of suspected domestic violence, he or she may let the abused party know that is the cause but should cite another reason to the other party. The mediator might say that the two parties are too far apart in their positions or that one or the other is unable or unwilling to negotiate or compromise.
If domestic violence is uncovered but the abused party wants to go ahead with the mediation anyway, the process can go forward if the abused party provides informed consent; demonstrates an understanding of the process and possible outcomes; is advised to seek counseling and an attorney; provides satisfactory reasons to continue with mediation; and accommodations are arranged to allow both parties to feel safe and capable of reaching a voluntary agreement.
Informed and responsible attorneys and mediators are key to keeping both parties safe during family law mediation.
Highland Family Law Attorney Kathryn Wayne-Spindler is a trained mediator. She is committed to ensuring potential mediation candidates are safe and protected. She is familiar with the domestic violence screening process and takes her role as client advocate seriously. For more information about mediating a divorce or family law matter, contact the Milford, Michigan law office of Kathryn Wayne-Spindler & Associates at 248-676-1000. The experienced attorneys of Kathryn Wayne-Spindler & Associates help clients throughout Southeastern Michigan including Oakland, Wayne, Washtenaw, Genesee and Livingston counties. They handle cases in Milford; Highland; Hartland; White Lake; Walled Lake; Waterford; Commerce; Howell; South Lyon; New Hudson; West Bloomfield; Holly; Grand Blanc and many more local communities.
Written and Posted by Christine Donlon Long, Communications’ Specialist for Kathryn Wayne-Spindler & Associates