Domestic violence

Besides the failure to understand the dynamics of family violence, another common problem arising prior to mediation is where the victim has told the lawyer about the stories of violence, but has not been believed.  The failure to respond increases the victim’s frustration of having to survive on their own. Also, lawyers should learn to avoid using languages that implicitly blame victims for the effects of family violence on their social and psychological functioning, and should instead strive to normalize the emotions and behaviors of victims. In serious cases, lawyers who fail to respond seriously to threats of violence may be partially liable for the perpetrator's violence, which results in the victim's death or the deaths of bystanders.

To better prepare for the client’s case, the family lawyer should be equipped to arrange short and long-term plans, as well as to teach the client how they should confront with the perpetrator during mediation, especially how the victim should react if the perpetrator instigates abuse or harassment during mediation. The lawyer should also rehearse with the client, until the client feels confident to speak his or her mind in front of the perpetrator. Skilful preparation, although rare, is therefore the most important matter in mediation.

B Client Safety

Family lawyers should also be highly vigilant of the physical safety of victims of family violence before, during and after mediation. Studies have shown that when victims attempt to leave, perpetrators tend to escalate the violence. Lawyers without appropriate training may inadvertently expose their clients to further violence. For instance, if lawyers draft visitation agreements which allow direct contact between the disputants, victims are likely to be assaulted or harassed by the perpetrator when the children are transferred. 

Family lawyers who represent victims must therefore comprehend the potential lethality of perpetrators and help their clients develop exhaustive pre and post-mediation safety plans. Safety of any children and related third parties must also be considered. Sometimes escape or hiding are the only safe methods of providing protection, lawyers should therefore be aware of social security entitlements, available emergency accommodation, skilled social workers and organizations which can provide non-legal means of protection. In appropriate cases lawyers should also consider ways in which client’s location can be kept unknown to the perpetrator. In less serious cases, the family lawyer can protect the victim by, for instance, escorting the victim to the car following the mediation, or drive the victim to the lawyer’s office to avoid the perpetrator following the victim to his or her home or workplace. Further, family lawyers acting as victim’s advocates should learn how to protect victims from physical or verbal abuses during mediation.

IV FAMILY LAWYER AS NEUTRAL MEDIATOR

Mediators, having procedural and substantive power, influence the content of a dispute whether they do so advertently or not. 

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A Importance of Investigating Violence

Whereas the current mediation model focuses on relationships rather than criminality, needs rather than rights, and the future rather than the past, it becomes harder for women to raise their past family violence, especially when the perpetrator tries to hide such facts.. Consequently mediators often may not be conscious of any history of family violence. Besides, research shows that mediators believe that victims of family violence are safe immediately after separation, whilst in truth much of this violence is linked in some way to the negotiation process. Yet the protection of victims seems to be often overlooked in the mediation process.

In any event, mediators often think mediation is not an appropriate venue to discuss family violence. Mediators tend to marginalize allegations of domestic violence by, for example, remaining silent to the victim’s allegation of family violence, treating the reported occurrences as insignificant, asking different questions, or judging the issue as irrelevant. Even where the mediator acknowledges the history of violence, it is erroneous to assume that a victim’s violence-induced fearfulness can be tackled through simple process interventions such as allowing her a reasonable opportunity to speak during mediation. These interventions are ineffective in overturning what might be years of powerless and loss of control. To worsen the situation, research indicates that perpetrators do not normally cooperate with their victims in mediation by imposing their interests over them; they coerce, threaten, devalue their victims and refute their own violence. Accordingly victims may feel compelled to make decisions in favour of the perpetrator. 

Family lawyers acting as mediators, whilst maintaining the role of a neutral facilitator, should therefore acknowledge that victims might start violence allegations tentatively. They should play an active role in addressing and investigating something that is brought up in such an indirect manner that renders it seemingly less serious. To do so effectively mediators should be trained to recognize how the difference in social backgrounds of the disputants, stage of the divorce, and mediation techniques in different situation would affect the power of disputants in mediation.

B Empowering Victims

Mediators need appropriate training to acknowledge and use their influence wisely, and to make use of the inbuilt empowering characteristic of mediation to empower both parties, particularly the less powerful party. They should be trained to make a safety assessment prior to mediation, and advise the apparently weaker party to be prepared for mediation by understanding the importance of raising allegations early and assertively if they are to be treated as main points in the mediation. To do so mediators may arrange separate meetings with each disputant prior to the mediation to obtain more facts from both sides. 

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V CONCLUSION - FAMILY LAWYERS SHOULD BE REQUIRED TO HAVE TRAINING IN FAMILY VIOLENCE

Despite training being costly and time consuming, potential benefits generated from training would by far exceed the costs. Where sufficient and appropriate training is in place, reconciliation of relationships via mediation would become achievable even in cases involving family violence. This is not to mention the benefit of broader career prospects for family lawyers as advocates or mediators in mediation, the understanding of the dynamics of family violence perhaps could also encourage more lawyers to take on these cases on a pro-bono basis. Ultimately, the lessening of family violence would lead to less economic costs on a societal level, such as expenditure on law enforcement, public health, public safety and workplace productivity. 

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VI BIBLIOGRAPHY

A Articles/Books/Reports

Alexander, Renata, Domestic Violence in Australia – The Legal Response (3rd ed, 2002)

American Bar Association, When Will They Ever Learn? Educating to End Domestic Violence: A Law School Report, (1997)

Auditor General for Western Australia, A Measure of Protection: Management and Effectiveness of Restraining Orders, Report No 5 (2002) 6

Bagshaw, Dale et al, Reshaping Responses to Domestic Violence – Final Report, (2000)

Commonwealth Law Reform Commission, Equality Before the Law: Women’s Access to the Legal System, Interim Report No 67 (1994)

Commonwealth of Australia, Government Response to the Family Law Pathways Advisory Group Report, (2003)

Family Law Council of Australia, Best Practice Guidelines for Lawyers doing Family Work, (2004)

Field, Rachael, ‘A Feminist Model of Mediation that Centralises the Role of Lawyers as Advocates for Participants Who are Victims of Domestic Violence’ (2004) 20 The Australian Feminist Law Journal 65

Field, Rachael, ‘A Feminist Model of Mediation: Using Lawyers as Advocates For Participants Who are Victims of Domestic Violence’ (2005) Autumn Edition Domestic Violence and Incest Resource Centre Newsletter

Flynn, David, ‘The Social Worker as Family Mediator: Balancing Power in Cases Involving Family Violence’ (2005) 58(4) Australian Social Work 407

Greatbatch, David and Dingwall, Robert, ‘The Marginalization of Domestic Violence in Divorce Mediation’ (1999) 13 International Journal of Law, Policy and the Family 174

Herring, Jonathan, Family Law (2nd ed, 2004)

Kaye, Miranda, Stubbs, Julie and Tolmie, Julia, ‘Domestic Violence and Child Contact Arrangements’ (2003) 17 Australian Journal of Family Law 93

Statewide Steering Committee to Reduce Family Violence, Reforming the Family Violence System in Victoria (2005)

Seuffert, Nan, ‘Locating Lawyering - Power, Dialogue and Narrative’ (1996) 18 Sydney Law Review 523

Wade, John, ‘Representing Clients Effectively in Negotiation, Conciliation and Mediation of Family Disputes’ (2004) 18 Australian Journal of Family Law 283

B Legislation

Family Law Act 1975 (Cth)

C Other Sources

Attorney-General’s Department (2007) <http://www.ag.gov.au/www/agd/agd.nsf/Page/FamiliesFamily_dispute_resolution> at 7 April 2007

Boshier, Peter, Wikato Domestic Violence Hui (2007) Family Court of New Zealand < http://www.justice.govt.nz/family/publications/speeches-papers/default.asp?inline=dealing-with-family-violence-in-New-Zealand-march-2007.asp> at 6 April 2007

Law Institute of Victoria (2007) <http://www.liv.asn.au/public/legalinfo/adr/adr.html#Heading3> at 7 April 2007

Owen, Leslie, Washington State Domestic Violence Civil Justice Project Report (1999) Washington State Bar Association <http://www.wsba.org/atj/publications/projreport.htm> at 5 April 2007

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