Domestic violence and power imbalances in mediation

 

Is it fair to require or expect a weak party to mediate with a powerful party? Should victims of domestic violence ever be expected or required to mediate with the perpetrators of that violence?

These questions raise important, complex and controversial issues.

I will endeavour to summarise my views about them as clearly and succinctly as possible. This is not an academic paper. It is intended as a simple and practical guide for those who might be about to enter into mediation.

I discuss two-party mediation, but my comments equally apply to multi-party mediation.

Power imbalances

For present purposes, I define power as the ability of a party to achieve their desired negotiated outcome.

Each party will always have some power. No one is ever totally powerless.

What we are considering here is the relativity of power, that is to say how the power of one party compares with that of the other.

There is power imbalance in most mediation. That is perfectly normal and to be expected. It is largely because power imbalances of one sort or another are a feature of our everyday lives. Mediation is often a microcosm of the outside world.

But are there cases where mediation should not take place having regard to the nature and degree of the expected power imbalances between the prospective parties? And if mediation does take place, how should the parties and the mediator address the power imbalances present?

The following points should be made at this stage:

  • Power comes in many different forms
  • Each party in mediation exerts various forms of power
  • Sometimes a party's power results from the loss of the other party's power
  • It is not always obvious what power each party possesses
  • Power may remain concealed throughout mediation
  • It is not uncommon for the party who appears to have little power to have considerable power, and conversely for the party who appears to have a lot of power to have little power
  • Parties do not always realise the power which they have, even although the opposite party might recognise that power
  • The balance of power may shift during the course of the mediation
  • In any one mediation the many competing forms of power might give rise to an overall imbalance of power
  • It may however be impractical to measure, compare and balance the many types of power present in mediation, and hence it may be impossible or meaningless to say who has the overall balance of power.

There are different ways to analyse, categorise, classify and discuss power, or the absence of power. No one way is correct.

For example, power may be discussed in terms of its sources and causes on the one hand, or in terms of its manifestion and effects on the other.

Here are some commonly mentioned sources or causes of power or its loss:

  • The law
  • The facts/evidence
  • Resources, including income and assets
  • Standing, position and authority
  • Age
  • Gender
  • Culture
  • Language
  • Religion
  • Education
  • Intelligence
  • Knowledge
  • Health
  • Disability
  • Personality
  • Violence and coercion
  • Relationships
  • Support of others
  • Obligations to others
  • Timing issues
  • Vulnerabilities
  • Morality

The scope of the above list illustrates that power imbalances could be considered an unavoidable feature of life which parties in negotiation need to realistically factor into their discussions.

If for example, one party has the law and evidence on their side and the time and resources to argue the case in court, and the other party is in poor health and lacks supports, that latter party might be unwise not to take these power imbalances into account when deciding whether or how to settle.

Unfortunately, as a mediator I can do little to redress the deep seated structural unfairness of the world outside the mediation room, although I do always strive to assist the parties to achieve outcomes which they consider fair.

What I can and must do however is to oversee the mediation process itself in order to ensure that it is procedurally fair.

 This gives rise to the issue of whether it fair for parties to mediate when there are expected, perceived and actual power imbalances.

There is no easy answer to this question.

I find it useful to distinguish the capacity or ability of parties to negotiate from the substantive strengths and weaknesses of their bargaining positions.

A party may have good ability to negotiate, but have a weak case. Equally, a party may have a strong case but poor ability to negotiate.

The respective negotiation abilities of the parties should be compared in order to assess procedural fairness. If both parties have similar ability to argue their respective cases,then that indicates procedural fairness. But if one party has a high level of ability to argue their case and the other party a low level of ability, then that is likely to be of concern.

Reasons parties may have differing capacities to argue their cases include those associated with violence and coercion, personality, language and cultural difficulties, disabilities, health problems and level of education.

As a mediator therefore, I want to know the power imbalances that the parties might bring to the mediation table or which might develop at the mediation table.I want to ensure that in the light of these power imbalances the process is fair, even if the outcomes must to some degree reflect those imbalances. There may be cases however where power imbalances are so acute that mediation should not commence or continue.

There is not the space to explain how I deal with power imbalances which I encounter. Suffice to say that a high level of mediator skill and experience is called for, together with utmost integrity.

Domestic violence

Domestic violence is a serious and widespread problem in New Zealand and worldwide.

Both men and women may be the victims of domestic violence, although in the great majority of cases it is women.

It is extremely damaging for children to witness domestic violence. They may be the greatest victims.

Domestic violence gives rise to physical, mental and emotional damage of different type, severity and duration.

The functioning of the victims of domestic violence may be impaired in ways that are not obvious or apparent.

The question of whether the victims of domestic violence should be expected or required to attend mediation with the perpetrators of that violence is a question for policy makers to answer.

The question I prefer to address is whether in any circumstances mediation between the perpetrators and victims of domestic violence is ever appropriate.

My answer is that mediation between perpetrators and victims may in some cases be both  appropriate and desirable, but that  in other cases neither appropriate nor desirable.

As a mediator, I do not want the victims of domestic violence further victimised or unfairly disadvantaged in mediation on account of that violence. But nor do I  want victims to miss out on the opportunities mediation affords to them and their children.

Indicators of whether or not mediation in the context of domestic violence should proceed include:

  • Whether the victim wishes to proceed to mediation
  • Whether the perpetrator has acknowledged the violence and expressed genuine remorse
  • Whether the violence might reoccur or whether it is ongoing
  • Whether the perpetrator wishes to proceed to mediation
  • Whether the interests of the victim favour mediation.
  • Whether the interests of children favour mediation
  • When the violence occurred
  • The form, severity and frequency of the violence
  • The impact of the violence on the victim
  • The ability of the victim to communicate with the perpetrator face to face
  • Whether confronting the perpetrator in mediation would serve to exacerbate or heal the effects of the violence
  • The ability of the victim to express and maintain a viewpoint contrary to that of the perpetrator
  • The extent to which the violence is connected to the subject matter of the mediation
  • The number, nature and extent of power imbalances unrelated to the violence either in favour of the victim or in favour of the perpetrator
  • Whether the victim will be supported at the mediation
  • The extent to which the victim's physical, mental and emotional safety at the mediation can be assured
  • The skill and experience of the mediator in mediating cases involving domestic violence
  • The level of trust and confidence the victim has in the mediator
  • The level of trust and confidence the perpetrator has in the mediator
  • The degree to which the perpetrator will follow the guidance and directions of the mediator
  • The options which are available to the parties should mediation not occur, and the likely timing, cost and outcome of those options.

 Decision making as to whether mediation between the perpetrators and victims of domestic violence is appropriate or desirable should be made in accordance with the unique circumstances of each case.

It is a good idea that such decision making includes consultation with the prospective mediator, so that the victim is fully and accurately informed as what mediation would involve, and whether and how concerns might be addressed.

 

See also:

Is mediation suited to your dispute?

What is mediation?

What is a mediator?

The benefits of mediation

Do you need a lawyer?

Family Dispute Resolution (FDR)