From a September 28 post in Karl Bayer’s blog, Disputing:
A recent article in the Yale Journal of Law and Feminism entitled “Moving Out of the 1990s: An Argument for Updating Protocol on Divorce Mediation in Domestic Abuse Cases,” 22 Yale Journal of Law and Feminism 97 (2010), makes an interesting argument that many states need to reexamine policies banning or restricting mediation in divorce proceedings involving domestic violence.
I’m going to permit myself an observation on the article in question despite my only having read its abstract. (I haven’t found the full text online.)
In the 1980s and 1990s, the feminist critique of mediation centred on how the process disadvantaged women as a whole. The mediation process was private, not accountable, and did not create or rely on precedent cases. In contrast, the legal system was public, accountable, rights-, and precedent-based. Consequently, it offered women much more of ‘a level playing field’ as well as legal protections and rights than the mediation process itself.
In evaluative mediation, the so-called ‘shadow of the law’ actually becomes a virtual party to the mediation process. So, in calling for the reform of policies on court mediation where DV is involved on the basis of the present realities of court mediation (evaluative not facilitative), the article is in a sense extending the former feminist critique of mediation as a whole: the more mediation resembles a legal process, the more acceptable it will be to women.
But is this the only way mediation in DV cases is acceptable? For me, the key question in DV cases is to customize a process that doesn’t deny a victim her voice or her options while at the same time ensuring her safety and protection. Since 2004, this type of approach has been implemented in Dutchess County, N.Y, through partnering mediators and DV counsellors: “The first rule in all such cases is the domestic violence itself is never a topic for mediation.”