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Divorce Mediation and Domestic Abuse


Divorce mediation is a very cost effective, efficient way of handling a divorce. Many people would be better served by mediation than running into court and running up the cost of ending the marriage. Mediation can be chosen by the parties, though both parties must agree to it; and in some circumstances, mediation is a requirement.

If domestic abuse is a factor in the relationship, however, mediation may not be an option. Divorce mediation and domestic abuse are not a good mix. Even in circumstances in which mediation is a requirement, courts may not allow mediation when domestic abuse is an issue.

Consider, if you will, a divorce mediation wherein the parties are at odds over the parenting of their grade school age son.  During the first session, education is discussed and the husband expresses the belief that the couple’s son should be required to wear a sport coat daily to public school.  When the wife objects, asserting the negative emotional impact upon the child from his peers, an argument quickly ensues and the husband becomes enraged launching a barrage of insults at the wife.  The mediator interjects and the moment calms.

As interests and positions are further examined, the wife’s comments are dismissed by the husband, who attempts to control the conversation and dominate the outcome.  Frustrated that the mediator thwarts the takeover and allows the wife to express her opinion that the husband is causing their child to withdraw, but the husband, sensing the threat of losing control, yells, “You are nothing and know nothing! I will win and bury you… literally!”  The wife cries and softly whispers under her breath, “You almost did last time”; and little louder, “I just want to get it over.”

A seasoned mediator would end the mediation at that point. Mediation is intended to provide an opportunity for both spouses to settle their own issues by mutual agreement. When one spouse exercises control over the other spouse, or one spouse is effectively controlled by the other spouse, the mutuality of the mediation process breaks down.

Illinois law specifically recognizes this dynamic. (See Illinois Marriage and Dissolution of Marriage Act (IMDMA)) 750 ILCS 5/607.1(c)(4)) Abuse is defined in the Domestic Violence Act as “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation”. (20 ILCS 1310/1(a))

Various local court rules mirror the State’s concern that abuse is an impediment to mediation. In Kane County, Illinois, mediators are required to screen for cases that may be deemed inappropriate for mediation. (Sixteenth Circuit Court (Kane County), Local Court Rule 15.18(a)(2) In DuPage County, the court is required to do the screening by posing questions to the attorneys and the parties. (Eighteenth Judicial Circuit (DuPage County) Local Court Rule 15.15(A)(3))

Mediators are trained to spot domestic abuse. (Vestal, Anita, Domestic Violence and Mediation: Concerns and Recommendations) Domestic abuse is often not easily identified without training. Couples exhibit a strong tendency to keep abuse private and minimize or deny that it exists. Couples do not often talk about abuse that is occurring in the home, and many simply assume that it is “normal”.

Domestic abuse of all kinds, however, is considered a serious societal concern. Domestic abuse may range from physical to sexual to psychological. It may be a single, isolated incident or periodic or systemic. It can be subtle or overt. In all cases, under standards such as those established by the American Bar Association and Association of Family and Conciliation Courts, a divorce mediator is required to suspend or terminate mediation when abuse is reasonably believed to have occurred and, especially, if it may be influencing the mediation.

The fact that domestic abuse may have affected the marriage in some form does not necessarily mean that mediation is not an option for such a couple. The abuse, however, may need to be addressed through counseling or other means before mediation can be resumed or begin.

If parties recognize that domestic abuse has colored the relationship, that self-identification and commitment of the parties to address it may sway a court to allow mediation, provided that that court is satisfied that the abuse dynamic will not interfere with the mediation process. With the knowledge that abuse has affected the relationship, a mediator can be more effective in guiding the parties to a mutually beneficial and agreeable resolution, which is the goal of mediation.

Mediation is a very efficient, cost effective way for couples to separate in divorce. Divorce does not need to be a “War of the Roses”. Mediation is a way to prevent a divorce from degenerating into a knockdown, drag out fight that fattens the wallets of the attorneys, tries the court’s patience, empties the bank accounts of the divorcing couple and sets the future course of dealings on a path not unlike the Medieval Crusades.

If the marriage has failed, there is no hope for reconciliation and both parties are agreeable, mediation should be a consideration. Especially when kids are involved, mediation avoids the entrenchment and vitriol that often occurs in divorce, paves the way for future cooperation (for the kids’ sake) and saves the heavy cost of attorneys that are spent in more traditional divorce litigation. When domestic abuse is a factor, however, mediation does not “work”.