Safety, Satisfaction, and Settlement in Domestic Relations Mediations: New Findings

• Author: Katrina Coker,Joshua Johnson,Yeju Choi,Susan Raines
• Published date: 01 October 2016
• Date: 01 October 2016
• DOI: http://doi.org/10.1111/fcre.12246

SAFETY, SATISFACTION, AND SETTLEMENT IN DOMESTIC

RELATIONS MEDIATIONS: NEW FINDINGS

Susan Raines, Yeju Choi, Joshua Johnson, and Katrina Coker

Researchers and mediators have long been concerned about coercion, intimidation, and safety threats that could occur in medi-

ation for cases where previous violence between the parties has occurred. Most of the research focuses on screening tools to

identify parties at risk. When parties screen positive for intimate partner violence (IPV), some proceed to mediation and some

do not, depending on the policies of individual mediation programs. But this misses a step: Some cases may benefit from medi-

ation while others won’t, but how can we predict whether mediation will be useful and safe in specific instances? This study

uses survey data obtained from parties in domestic relations mediations to examine issues of safety, satisfaction, andsettlement

in the presence of various IPV behaviors.

Key Points for the Family Court Community:

Screening for intimate partner violence (IPV) is not enough. Research is needed to help direct us toward those cases

which might benefit from mediation, even in the presence of IPV, and which would not benefit.

Some violent or threatening behaviors have a greater impact on settlement rates and satisfaction levels than others.

Previous verbal threats to harm the other party had a greater negative impact on the chance of settlement than did a his-

tory of physical violence between the parties.

Mediators and court personnel who are engaged in screening cases for violence and safety need better, specific guid-

ance about which types of past behavior are likely to reduce the benefits of mediation for all concerned.

Keywords: Courts; Domestic Violence; Intimate Partner Violence; Mediation; Safety; and Screening.

INTRODUCTION

There is a long-running debate as to whether or not mediation should be used in divorce

or family law cases where intimate partner violence/abuse (IPV/A

1

) has occurred (Ver Steegh

& Dalton, 2008; Holtzworth-Munroe, 2011). The main concerns are for party safety and the

possibility that survivors of IPV/A might be coerced into accepting agreements that are not

in their interests (Krieger 2001; Fischer, Vidmar, & Ellis, 1993; Tishler, Bartholomae, Katz,

& Landry-Meyer, 2004). On the other hand, some scholars and practitioners decry the unfair-

ness of denying mediation to parties who believe they could benefit from it (Edwards, Baron,

& Ferrick, 2008; Emery, 2011). They argue that survivors of IPV/A may reap benefits from

mediation and the process can be made relatively safe in most cases (Rossi, Holtzworth-

Munroe, & Applegate, 2015; Putz, Ballard, Arany, Applegate, & Holtzworth-Munroe, 2012;

Mathis & Tanner, 1998). So far, the literature has not reached any conclusions as to whether

mediation results in better or worse outcomes than litigation for the victims of IPV/A (Putz

et al., 2012; Rossi et al., 2015). Also, we do not know whether mediation is more or less

safe for victims of IPV/A than adjudication.

Although there are many tools to screen for IPV/A before mediation or other processes (Beck,

Walsh, Mechanic, Figueredo, & Chen, 2011; Ballard, Holtzworth-Munroe, Applegate, & Beck,

2011; Beck, Menke, & Figueredo 2013), we still lack guidance as to which cases are most or least

likely to benefit from mediation, especially in light of a history of violence between the parties. This

study seeks to make initial efforts in that direction through an analysis of case characteristics correlat-

ed to parties’ perceptions of safety, satisfaction, and settlement. Similarly, while scholars have feared

that agreements reached in mediation may be coercive to victims, there is clear data to indicate

whether IPV/A victims who reach agreements in mediation felt coerced into doing so. This study

seeks to test this assumption.

FAMILY COURT REVIEW, Vol. 54 No. 4, October 2016 603–619

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C2016 Association of Family and Conciliation Courts

LITERATURE REVIEW

IPV/A AND PARTIES’ PERCEPTIONS OF SAFETY

There is much literature concerning for the safety of IPV/A victims in mediation (Ellis &

Stuckless, 2006; Clemants & Gross, 2007). Screening IPV/A cases does not guarantee victims’ safe-

ty during and after mediation (Landrum, 2011). Many scholars claim that there is a possibility of

physical harm against the victims in the process of, or after, their separation (Beck & Sales, 2000;

Campbell et al., 2003; Ellis & Stuckless, 2006; Clemants & Gross, 2007). These scholars contend

that mediation may allow the perpetrators to see their victims face to face, which could jeopardize

the victims’ safety during the session. Similarly, mediation may allow the perpetrators to gain access

to information that could put victims’ safety at risk in cases in which victims agree to unsafe provi-

sions in attempts to placate their perpetrators (Fischer et al., 1993; Beck & Sales, 2000; Salem &

Milne, 1995; Krieger, 2001; Putz et al., 2012). Indeed, anecdotal cases of violence after mediation

exist (Kotev, 2013; Johnson, 2008) as do anecdotal cases of violence during the traditional legal pro-

cess of divorce and family law cases (Shea, 2016; Wires, 2015; Towner & Robinson, 2015; Wyke,

2015).

Though there are many scholars who have raised this concern about victims’ safety, this issue has

not yet been supported by empirical research. No study has examined whether mediation is more or

less safe than litigation for IPV/A victims. Also, no study has examined disputants’ perceptions of

safety in mediation compared to litigation. So far, the research that has most closely examined vic-

tims’ perceptions of safety in mediation is the study conducted by Ballard, Holtzworth-Munroe,

Applegate, and D’Onofrio, (2011). In their research, Ballard, et al., (2011) find that female partici-

pants with a history of IPV/A are more likely to be concerned about their safety in mediation than

female participants without a history of IPV/A, but they are unlikely to report these concerns. This

study does not compare disputants’ perceptions of safety in mediation versus adjudication or during

the litigation process. Thus, this study makes an initial effort to examine parties’ perceptions of safety

before, during, and after mediation. Because our sample includes both non-IPV and IPV cases, we

can compare perceptions between these two groups.

IPV/A AND PARTIES’ SATISFACTION

There are many studies that examine parties’ satisfaction rates in mediation (Kelly, 2004; Kressel,

Frontera, Forlenza, Butler, & Fish, 1994; Pearson, 1994; Meierding, 1993; Pearson & Thoennes,

1982, 1986, 1989; Kelly & Gigy, 1989). Although Beck and Sales (2000) argue that much of this

research has methodological concerns, the evidence is clear that mediation brings higher satisfaction

than litigation for divorcing clients.

While not confined to families evidencing domestic violence, the studies by Meierding (1993),

Pearson and Thoennes (1986), and Kelly (2004) all showed overall results that mediation is preferred

to litigation and that participants stated they would usually recommend the process to others. In the

study by Pearson and Thoennes (1982), 76% of the clients were satisfied with mediation. Also, the

study by Kelly and Gigy (1989) found a similar result; 78% of male and 72% of female participants

reported that they were satisfied with mediation. Even when agreements were not reached, 62% to

79% of participants stated they would still recommend mediation and 75% of the noncustodial

parents stated the process was fair (Pearson & Thoennes, 1986, pp. 207–209). Meierding (1993)

explained this high-level of satisfaction is due to the fact that mediation is voluntary and confidential.

While the process may be “tension filled,” mediation allows divorcing clients to “focus more on the

children,” “air grievances,” and “keep on track” more than the traditional legal processes (Pearson &

Thoennes, 1986, p. 207). While mediation clients reported 60% to 80% satisfaction rates, litigants

only reported 30% to 50% of satisfaction rates (Beck & Sales, 2000). In the study by Pearson and

Thoennes (1982), only 42% of litigants reported that they were satisfied with their experiences, while

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