MSW

1. SWK 4619H
Family Mediation: Theory And Practice
Domestic Violence and Family Mediation
Week 6
Michael A. Saini, PhD, MSW RSW
Professor
Factor-Inwentash Chair of Law and Social Work
Co-Director of the Combined JD/MSW program

2. Why should mediators
care about domestic
violence?

3. Why is Domestic
Violence Relevant
Abuse Does Not End With Separation
Overlap Between Child Abuse and Domestic Violence
Children’s Exposure to an Inappropriate Role Model
Undermining of Non-Abusive Parent
New Relationships Potentially Violent
Perpetual Litigation as Form of On-Going Control
Extreme Cases - Homicides and Abductions

4. Presence of
Abuse
4
A history of violence and abuse within a family is
associated with the increase risk of violence and
serious assault after separation (Amato & Keith,
1991; Humphreys, 2007; Wilson & Day, 1992)
Mothers who disagree with their ex-partners are
significantly more likely to be physically abused
and more likely to feel afraid (Ehrenberg, 1996)
There is an increased risk of homicide and serious
assaults during and after separation

5. DV Criticisms
of Mediation
• Safety risks to both parent and child.
• Power imbalance between victim and
offender is too great.
• Custodial interference and prolonged
custody battles cannot be resolved by a
mediator.
• Ensure that the victim and offender are not
in the same room.
• Opportunity for legal counsel to be present.
• Mediators may not understand domestic
abuse dynamics or have the ability to
recognize it and may promote unsafe
practices and unsafe agreements.

6. Family
Violence in
Canada
• Also commonly called relationship/dating
violence, intimate partner violence, and
gender-based violence.
• Family violence cuts across all socio- economic
groups
• Every racial and ethnic group
• Every economic group
• Every occupation
• Heterosexual and same-sex
relationships, transgender and
intersex populations.
6

7. Family Violence
in Canada
7
Less than a third of survivors of intimate
partner violence report to the police.
Violence does not necessarily end with
separation.
Gender – overall more serious assaults
and injuries of females vs. male victims.
Harms to children – direct harms from
exposure; also overlap in prevalence
between exposure and direct abuse.

8. Family Violence Definition
“family violence” means any conduct, whether or not the
conduct constitutes a criminal offence, by a family member
towards another family member, that is violent or threatening
or that constitutes a pattern of coercive and controlling
behaviour or that causes that other family member to fear for
their own safety or for that of another person — and in the
case of a child, the direct or indirect exposure to such
conduct — and includes… 8

9. Family
Violence
Definition
9
(a) physical abuse, including forced confinement but excluding the use of
reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property;
(violence familiale)

10. Types of Violence in Families (Jaffe, 2008)
10
• Isolated
• Defending
• Couple
violence
• Power and
control
Abusive-
Controlling
Violent
Relationship
(ACV)
Conflict
Instigated
Violence
(CIV)
Separation-
Instigated
Violence
(SIV)
Violent
Resistance
(VR)

11. Implication
to
Separating
Families
• Based on case files (Bow & Boxer, 2003), violence
was estimated to have been present in 37% of
cases;
• 46% of those cases were separation related;
• 29% of cases were episodic;
• 24% of cases were enduring, chronic violence;
• when violence was an issue, 16% of cases had
severe violence; 33% moderate; 50% minor;
• 51% of violent cases had a male as the primary
instigator; 11% female primary instigator; 17%
were bidirectional, mostly male; 14%
bidirectional, mostly female; 7% bidirectional,
mutual.
11

12. Limitations of
“Typologies”
12
Difficulties to distinguish typologies (e.g.,
relationship control vs. severity of violence)
Lack of predictive accuracy of future violence and
effects of the violence(Anderson, 2008)
Significant research is needed on the typologies as
well as on the best parenting plans to use with a
given scenario in a given family (Austin & Drozd,
2012).

13. Power &
Control
Coercion and Threats
Intimidation
Emotional Abuse
Isolation
Minimizing, Denying, and Blaming
Using Children
Economic Abuse
Male Privilege
Female Prerogative

14. Reporting
Source: Family Violence in Canada: A Statistical Profile, 2010 14
Research also shows that most victims of
domestic violence do not report the violence
to a formal agency.
Only one in four women who experience
spousal violence reported it to police.
Only one in three women reported it to a
service-providing agency.

15. Why are these cases so difficult?
15
Referrals to authorities often are made by the other parent
Mutual finger pointing and counter-allegations made by both parents
Higher rates of malicious referrals
Cases more likely to be opened more than three times
Over one-third of all substantiated investigations involved exposure to domestic violence

16. Exposure
to
Domestic
Violence
16
Parents usually think children do not
know what is happening
Children witness between 60-80% of
assaults
When children live with domestic
violence it is not uncommon that they
witness some of the physical violence

17. Risk to
Children
17
Exposure to threats/acts of violence
Accidental physical harm
Child maltreatment and neglect
Homicide or abduction
Undermining victim and healthy parent/child
relationships
Rigid, irresponsible or neglectful parenting

18. Differential Response (Kelly, 2007)
18
Moving away from a “one
size fits all” paradigm that
all conflict is negative;
01
Providing a foundation for
the better assessment of
appropriateness of
parenting plans for
families experiencing
different dimensions of
violence;
02
Diminishing the ‘gender
wars’ about gender and
violence with data rather
than rhetoric;
03
Developing effective
intervention programs
more tailored to the
dimensions of violence.
04

19. 19

20. Screening
for
Domestic
Violence
20
More sources of information the better
Perpetrators will minimize
Instrument improves “expert judgment” – but
clinician wisdom important also
Never underestimate victim’s perceptions - but
often minimize victimization – therefore victim
assessment of risk not enough if low

21. Types of
screening
procedures
1. Private, in-person screenings.
2. Telephone screenings.
3. Written questionnaires.
4. Consultation with referring judges or
family court coordinators/advocates.
5. Checking with court records for prior or
current restraining orders and criminal
filings.
6. On site (in hearing) screenings by judges.

22. Screening for
Mediation
• Voluntariness, Coercion, and Undue Influence
• Mediators need to be aware of factors, cues, and
communication techniques (both verbal and non-
verbal) between the parties
• The mediator’s basis for safely determining the
probable voluntariness of both parties is by
utilizing shuttle diplomacy and reality testing
techniques, and by spending a good deal of time
in convening.

23. 23

24. Mediation
Options
1. The mediator may terminate the session
2. The mediator may proceed under a
shuttle diplomacy model.
3. The mediator may proceed in a joint
session.

25. Safe
Mediation
Practices
Prior to commencing mediation, all clients
must be screened for any occurrences of
abuse and/or power imbalance
The issue of voluntariness is critical when it
comes to creating a safe place for couples
to meet and negotiate.
Clients should be strongly encouraged to
consult with lawyers prior to mediation and
certainly before an agreement is finalized.

26. Mediators
must be
knowledgeable
about abuse.
Training for
mediators
needs to
include the
following:
Issues related to physical and psychological abuse and its effect
on family members;
The impact that abuse (including witnessing abuse) has on
children;
Effective techniques for screening, implementing safety
measures, and safe termination;
Referral to appropriate resources, in addition to, or instead of
mediation;
Sensitivity to cultural, racial and ethnic differences that can
impact the mediation process that may be relevant to domestic
violence.

27. Safe Mediation Practices
Where a decision is made that mediation may proceed, mediators
need to meet standards of safety, voluntariness, and fairness.
When mediators have concerns, they should inform their clients
that they are not neutral about violence or safety.
Mediators should inform clients that they have a positive obligation
to report past or present child abuse and threats of future abuse to
any of the participants.

28. Safe Mediation Practices
Obtain training about abuse and become familiar with the literature.
Obtain
Never mediate the fact of the abuse.
Mediate
Never support a couple’s trading non-violent behaviour for obedience.
Support
Set ground rules to optimize the protection of all parties
Set
When appropriate and possible, arrange separate waiting areas and separate arrival and leaving times,
permitting the victim to arrive last and leave first with a reasonable lag in time for safety purposes.
Arrange

29. Safe Mediation Practices
Use separate meetings throughout the mediation process when appropriate, necessary, and/or helpful.
Consider co-mediation with a male/female mediation team, as an option.
Allow a support person to be present in the waiting room during screening, and/or during the mediation
session.
Maintain a balance of power between the couple, and, if this is not possible, terminate the mediation process
and refer the couple to an appropriate alternative. Such alternatives might include shelters, therapists, abuse
prevention groups, and attorneys.

30. Safe Mediation Practices
Where fairness of outcome may be an issue, the mediator should refer the clients to their counsel,
financial advisor, support person, or other relevant resource for information and advice.
Terminate the mediation if either of the participants is unable to mediate safely, competently, and
without fear or coercion. Precautions should be taken in terminating to assure the safety of the parties.
For example, the mediator should not reveal information to one party or to the court that could create a
risk for the other party.
Consider offering a follow up session to assess the need for a modification of the agreement.

31. Child-centered Family Justice Model
Adapted from Child-centered Family Justice (Canada)
31
Minimize potentially negative impact of separation and
divorce on children
Assess the safety of each family member
Provide parents with tools to create a safe, thoughtful
parenting arrangement for the children
Provide appropriate options through legal system that are
less adversarial
Ensure child’s voice is heard
In cases of domestic abuse, provide resources to support
victim safety, offender accountability, and child well-being

32. Guiding Principles for Complex Cases
(Johnston (2007)
Priority 1. Protect children
Priority 2. Protect the safety & support the well-being of the victim parent
Priority 3. Respect the right of adult victims to direct their own lives
Priority 4. Hold perpetrators of domestic violence accountable for their abusive
behavior
Priority 5. Allow child access to both parents
Strategy: Begin with the goal of achieving all five.
Resolve conflict by abandoning the lower priority. 32

33. Common Couple
Aggression
(No child maltreat or
special needs)
Abuse of Child or Adult
(untreated
or unresolved)
Terrorism/ Stalking
Potency, Pattern,
Primary Aggressor
(pose risks if parents
meet)
Co-parenting
Parallel Parenting
Supervised
Exchange
Supervised Visits
No Visitation
High

Risk

Low
Parenting Arrangements after Violence
(Jaffe, Johnson, Crooks & Bala, 2008)