Is Mediation Appropriate In Cases Involving Family Violence?
Mar 22, 2022
A family law mediator can sometimes be involved in cases involving family violence, or domestic violence. While mediation is not appropriate for all cases, many practitioners of family law mediation agree that it can be very appropriate for cases of family violence.
What is family violence?
Family violence is an overall term for any form of abuse or neglect experienced between an adult or child from another close family member. The term “family violence” encompasses:
- Child abuse or neglect
- Intimate partner violence (IPV) or spousal abuse
- Gender-based violence (GBV) or violence against women
- Domestic violence – violence between family members who live in the same home. Can include child abuse, spousal abuse (intimate partner violence) or even elder abuse.
- Elder abuse or neglect
Despite the different terms, family violence always involves an abuse of power between two or more people who are in a dependent relationship. And that violence often creeps outside the home, invading public spaces like workplaces.
Family Violence Affects Women More than Men
While gender-based violence can affect all people, regardless of gender, age, ethnicity or sexual orientation, women and girls remain the most affected. Here are some statistics:
- In Canada in 2019, of the 107,810 people aged 15 and over who experienced IPV, 79% were women.
- Between 2014 and 2019, of the 497 victims of intimate partner homicide, 80% (400 victims) were women.
- In self-reported data from 2018, women were significantly more likely than men to have experienced any form of IPV, including physical abuse (23% versus 17%, respectively), sexual abuse (44% versus 36%), and psychological abuse (43% versus 35%).
Source: Government of Canada: What is gender-based violence?
Family Law and Family Violence
On March 1, 2021, provisions on family violence were added to the Divorce Act. The new provisions require judges to take family violence into account during cases of separation and divorce, particularly when protecting the best interests of a child. You can read more in our blog: Family Law Firm: Helping Identify and Respond to Family Violence.
Many victims of family violence, particularly intimate partner violence, are reluctant to face the perpetrators directly. The courts have the power to impose and enforce tools like restraining orders to protect victims of family violence. In mediation, the power imbalance between the perpetrator and victim may be too great for the victim to negotiate fairly, and they may feel pressured into an agreement that is not in their best interest.
Mediation, Family Violence and the Role of the Family Law Mediator
These concerns are answered by many mediators who see that out-of-court alternative dispute resolution can provide great benefit to family members, and promote longer-term solutions – even in cases where there is family violence.
If mediation is conducted in a safe environment, many victims of IPV or domestic violence find mediation to be empowering, allowing them to talk directly to their abusers, address power imbalances, and stand up for themselves.
In order to conduct mediation sessions safely, the family law mediator must carefully screen candidates for mediation. In addition, the family law mediator must do their best to ensure the safety of the participants in the mediation sessions. It is not the role of the family law mediator to mediate the actual violence, but to encourage both parties to negotiate safely, voluntarily and competently to reach a fair agreement regarding the division of property and providing the best interests of their children.
Victims of Family Violence CAN Experience the Benefits of Mediation
The benefits of family law mediation – like quicker, less costly resolution, and generally increased satisfaction in the outcome – are well known. The experience of family violence does not prevent you from trying to resolve your disputes with mediation. If you are interested in exploring mediation for your case, talk to a qualified family law mediator like Kelly Jordan, or your lawyer about your case. Feel free to reach out to the family law team at the Kelly D. Jordan Family Law Firm with your questions.
Government of Canada – What is Family Violence?
Government of Canada: What is gender-based violence?
Ontario Association for Family Mediation: Policy on Intimate Partner Violence and Power Imbalances