In an effort to decongest court dockets and promote amicable resolutions, some states are increasing mediation requirements for divorcing couples before court intervention. According to proponents, “pre-divorce” programs encourage harmonious co-existence, save on legal costs, and ease the emotional effects of acrimonious break-ups.
However, domestic violence activists warn that these blanket requirements ignore the dynamics of coercion and imbalance of power in abusive relationships, making survivors even more vulnerable. Here’s why this debate is heating up, and what it means for vulnerable individuals.
1. The Problem with Mandatory Mediation in Abusive Relationships
Mediation relies on honest communication and mutual concession, conditions not typical of an abusive relationship. Survivors of domestic violence are often threatened or manipulated by their abusers. This makes it nearly impossible for them to negotiate something as potentially contentious as asset division or custody equitably.
An abuser may utilize the mediation process, for example, to exact unfavorable money awards or unsupervised visitation, profiting from the survivor’s fear of injury. Advocates note that forcing survivors to mediate ignores such power imbalances, effectively silencing their fears and safety concerns.
Worse, the policies in most states have poor mechanisms for screening for abuse before mediation is required. Without proper protection, survivors may be pressured into agreements that endanger their physical, emotional, or financial well-being. These policies assume that both parties are acting in good faith, but abuse is not about compromise, but control.
2. Ripple Effects on Survivor Safety and Autonomy
Imposed mediation doesn’t just impact immediate legal outcomes. It also erodes longer-term safety. Abusers often use the legal system as a mechanism to continue the abuse, and mediation provides yet another avenue for manipulation. Survivors may be urged to accept unsafe bargains in the interests of avoiding ongoing conflict, including accepting joint custody with a battering former spouse or giving up property critical to their independence.
The privileged nature of mediation hides patterns of abuse. Unlike court cases, which create public records, mediation agreements are kept confidential. This lack of transparency obscures discovery and makes it harder for future legal professionals or advocates to detect ongoing harm and intervene. For survivors, such confidentiality has the effect of deepening their isolation, closing doors to assistance.
3. Alternatives to One-Size-Fits All Policies
Opponents of mandatory mediation do not object to the process itself but all for nuance. Exemptions for domestic abuse cases, as well as improved screening practices, could protect survivors without compromising the value of mediation for others. Some experts suggest trauma-sensitive mediators with advanced training who can identify red flags and adapt proceedings accordingly. Others suggest voluntary mediation; survivors can opt to participate only if they can and feel comfortable and safe.
Legal professionals also stress the need for personalized services. Survivors require access to services that center their safety. These include protective orders, advocacy organizations, and attorneys experienced with abuse cases. Most experts also endorse fully integrated systems that merge survivors with community-based services.
These include local domestic violence shelters, trauma-informed therapy, and finance counseling, bringing the whole approach to their welfare. For those who don’t know where to turn, please go here to find attorneys who understand the subtle complexities of divorce in abusive or high-conflict relationships.
Endnote
While pre-divorce mediation seeks to minimize hostility and simplify separations, its compulsory use may retraumatize survivors of abuse. Policies must recognize that not every couple enters mediation the same way and that safety, not efficiency, must be the goal. By including exemptions, increasing abuse screening, and investing in survivor-centered services, states can maintain the intent of mediation without putting vulnerable survivors at risk of being ignored by the system.
