When Not to MediateFamily Mediation Center
When Not to Mediate
When Not to Mediate
Mediation is widely recognized as an efficient and cost-effective method for resolving disputes, particularly in family and relationship contexts. It aims to reduce conflict and facilitate resolution. However, as mediation has become more common, concerns about its suitability have arisen, especially in cases involving:
- Family Violence
- Intimate Violence
- Power Imbalance
- other factors such as drug abuse or alcohol abuse o mental illness.
When family violence, intimate violence, or power imbalances compromise a person’s ability to negotiate freely and without fear, mediation may not be appropriate. These issues are often intertwined, which complicates their resolution.
In my practice as a private mediator, while I do not frequently encounter cases of family violence, I often see cases involving power imbalances. I believe it is crucial to address power imbalances comprehensively. I will outline the concepts of family violence and intimate violence but will focus primarily on power imbalance.
Understanding Family Violence
Family violence, as defined in the Divorce Act, includes any violent, threatening, or coercive behavior by a family member that causes fear for one’s safety or that of others. This encompasses:
- Domestic Violence: Violent or abusive behavior in intimate relationships.
- Intimate Partner Violence: Harmful actions by a current or past partner or spouse.
- Sexual Violence and Abuse: Actions such as making degrading comments, non-consensual touching, or forced sexual activity.
- Child Abuse: Neglect or sexual exploitation.
- Elder Abuse: Abuse directed at older family members.
- Partner Abuse: Abuse within a partnership.
- Abuse by Parents, Guardians, or Siblings.
- Pet Cruelty
- Coercive and Controlling Violence: A pattern of behavior used to dominate another person, often involving emotional, psychological, financial abuse, and physical violence. This type of violence can escalate after separation or divorce and is particularly dangerous.
Assessment for Mediation
When assessing a case for mediation, we consider:
- Indicators of Coercive and Controlling Violence: Are there signs that the violence is controlling and ongoing?
- Situational Couple Violence: Is the violence more situational and less about control?
- Management of Violence: How is the violence managed, and what are the indicators?
- Stalking/Harassment: Is there evidence of ongoing harassment or stalking?
Power Imbalance
Power imbalances can be financial, emotional, or psychological. For instance, a person may not know the full extent of their partner’s financial assets or may have had their credit card canceled unilaterally. Emotional power imbalances often stem from belief systems and dynamics that may not align with our own cultural perspectives. It is not our role to change these perspectives but to screen and evaluate whether mediation is suitable or if one party might be at a disadvantage.
Questions to Consider Regarding Power Imbalance:
- Are there significant imbalances in financial, emotional, or psychological power?
- Can all parties understand and engage with the mediation process effectively?
- Are there signs of fear or anxiety that might impact participation?
- Are there necessary adaptations due to addiction, mental illness (e.g., depression), or cultural concerns?
- Can parties negotiate rationally given their circumstances?
- Are the kids at risk of the person negotiate freely ?
Other considerations :
- Is drug abuse or alcohol abuse an open issue in this mediation ?
- is a mental illness in this case ?
- is depression a factor tor the person not to understand the process and the outcome ?
Next Steps
If a power imbalance is evident, it is essential to determine if the person with more power is motivated to share all relevant information. If not, mediation may not be appropriate. In such cases, referring parties to a family lawyer may be the best option.
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