In honor of Domestic Violence Awareness Month, we’re taking a look at a common question about divorce mediation:

Is mediation ever appropriate when a couple has experienced domestic violence or abuse?

Some mediators would unequivocally say no. Mediation assumes that parties will keep each other’s best interests in mind and seek solutions that provide maximum benefit to both. Abuse creates a serious power imbalance and implies that an abuser is unwilling or unable to place any importance on the needs and wants of the other party.

This response is not entirely satisfactory, however, because it leaves an abused party with litigation as the only alternative. Is this really better? Litigation is famous for perpetuating and escalating aggressive patterns in relationships. In light of this, some mediators take more of a case by case approach. The presence of abuse dramatically decreases the appropriateness of mediation, but the presence of mitigating factors may indicate that mediation can still proceed, but with caution and only after implementation of safeguards.

Signs of Emotional or Psychological Abuse

Recognizing and properly assessing different types and levels of abuse is not always easy, especially if there is little or no physical violence. There is a common expectation that a perpetrator may not acknowledge the abuse, but what is less well-understood is that lack of acknowledgment may come from the victim as well. An abused spouse may not be aware that a particular experience amounts to abuse, or may not want to acknowledge the extent of the abuse. A highly troubling aspect of abuse is that emotional attachments formed through positive interactions are seldom broken by the presence of intermittent abuse; a victim may continue to feel intense attachment to someone that nevertheless poses a threat. Unfortunately, divorcing spouses tend to be at their psychological worst; some degree of psychological or emotional abuse is not uncommon.

Ask yourself if you have seen any of these signs in your relationship:

• Controlling behavior. In a marriage, signs of controlling behavior include irrational jealousy and possessiveness, trying to limit a spouse’s outside activities or contacts with friends and family, and monitoring or restricting phone or computer use.  In the context of divorce, it can extend to using children as pawns or messengers, or engaging in harassing or stalking behaviors, such as making repeated angry phone calls or showing up uninvited at a spouse’s new home or workplace.
• Economic or financial abuse. In a marriage, signs of economic abuse include controlling all the marital funds, requiring a spouse to turn over a paycheck, or putting a spouse on a restricted allowance. In the context of divorce, signs may include refusing to share financial records or refusing to reveal “under the table” income.
• Verbal abuse.  In a marriage, verbal abuse includes blaming, criticizing, making accusations, name calling, swearing, or threats of physical harm. In the context of divorce, it can include threats to interfere with custody or visitation rights, or threats of financial ruin.

If you have seen any of these signs, be proactive and protect yourself: Consult with an attorney who has experience both in divorce mediation and domestic violence. Key factors in assessing whether or not mediation remains a possibility will be the severity of the abuse, whether the abuse is unilateral or reciprocal, and the extent to which the abusive behavior is recognized and acknowledged by both parties.

Unilateral Versus Reciprocal Abuse

Unilateral abuse has one clear perpetrator and one clear victim. Unless it is fully and accurately acknowledged by both parties, unilateral abuse generally operates as a complete bar to successful mediation. A victim who cannot acknowledge the abuse is unlikely to be psychologically healthy enough to negotiate effectively. Conversely, a perpetrator who is too controlling to accept responsibility for the abuse is unlikely to be able to tolerate the idea of compromising in any way. The presence of denial, minimization, or blaming the victim are red flags to proceeding forward.

Abuse can be reciprocal as well as one-sided. Many divorcing couples are caught up in high-conflict styles of interaction involving some degree of abuse by each spouse. A mutually competitive or confrontational communication style is often identified early in mediation when each party constantly interrupts the other and attempts to dominate the conversation. Both parties may be verbally abusive, and both also may feel victimized and experience emotions such as helplessness, hopelessness, insecurity, anger, and guilt. This kind of style tends to feed on itself, embroiling the parties in a cyclical struggle to maintain the upper hand. It bodes poorly for success in mediation, but also foretells a poor outcome in litigation. High-conflict couples have difficulty disengaging from battle and are therefore likely to continue fighting unproductively in court, draining family resources and embroiling any children in ongoing hostility.

As with unilateral abuse, a key factor in whether or not mediation can proceed in a reciprocal abuse scenario will be the willingness of both parties to fully and accurately recognize the negative patterns of interaction. Both parties must recognize the problem and be willing to work toward collaboration.

Safeguards and Precautions

If you have identified abuse in your relationship and still wish to attempt mediation, proceed with caution. Make sure to select a mediator with a high level of training, excellent skills in power balancing, and significant experience with domestic abuse scenarios, and consider the need for the following safeguards and precautions:

1. Appropriate safety measures, such as increased security and weapons screenings.
2. Conditions on participation, such as one or both parties, as appropriate, attending anger management classes or family therapy.
3. Use of “shuttle diplomacy.” Normally in divorce mediation, parties meet face-to-face. If one or both parties has a restraining order against the other, this will not be possible, and the mediator will have to conduct negotiations with the parties in physically separate locations. Even absent restraining orders, a high-conflict scenario will usually call for more individual meetings (or “caucusing”) by the mediator with each party. The mediator will need to balance time and attention carefully.

Depending on the specific circumstances of your case, your attorney or mediator may have additional suggestions. Any level of domestic abuse requires serious attention and careful consideration of all circumstances to allow mediation the best possibility of success.