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Mediation: A Tool to Help Manage Domestic Violence

Note: Larry Ray served as prosecutor in Ohio for several years. His specialty became domestic violence. He assisted the state legislature to create a separate crime of DV. He created the social work initiative in the prosecutor’s office to assist victims. He chaired the board of the Domestic Violence Shelter and was active with the Committee for Battered Women. This blog entry is in commemoration of October-Domestic Violence Awareness Month.


Do you need, do you need someone? Are you scared of what's to come? If you leave then who will the next one be? Will he do the same or will he let you see?

You don't have to hurt, you don't have to hurt anymore With a little time, take a look and find what you're searching for

You are broken on the floor And you're crying, crying He has done this all before But you're lying, lying To yourself, that he'll find help That he will change to someone else But you're broken on the floor Still asking him for more

Will you leave or will you carry on….


Watch the video for this song here.


Introduction

Domestic violence (DV)* is a complex psychological, family, and legal phenomenon. No one has the answers and many are frustrated. DV has been around probably since humans appeared on this earth. Most DV involves a male injuring a female.


It should be stated clearly that professionals involved in these cases have two goals:

  • To prevent DV and/or

  • To stop DV

Is there a role for mediation in domestic violence cases?


Mediation is widely accepted as a dispute resolution option in all types of disputes in the United States. These disputes range from construction, international, divorce, custody, small claims, and criminal, including domestic violence. This does not mean that mediation is “the answer,” but it does mean that mediation has great potential in all types of cases.


Some DV advocates** are hesitant about mediation: mostly, because they do not fully understand the process. DV mediation does not involve mediating the amount of violence. Instead, DV mediation (just as in child custody and divorce mediation) is creating a plan of action for a way forward without the violence. The agreement often includes a permanent separation, anger management counseling and other counseling.


Often DV advocates seem to idealize the intervention of law enforcement and the legal system. They envision the legal system as to how it should be operating, not how it actually operates. (Example cases below will demonstrate the problems with legal system intervention.)


Mediation can be one of many dispute resolution tools in managing DV cases. Mediation agreements may involve separations, divorce, anger management courses, counseling, DV education, alcohol and drug intervention, etc.


Present Disposition of Domestic Violence Criminal Cases in the U.S.

An excellent beginning to answer this question is to examine the end; that is, what is the final disposition of criminal domestic violence cases?


  • In a few DV cases, the accused pled guilty in the beginning. This plea was then bargained and the guilty usually was released for time served.

  • In many cases, as the case progressed through the system, the victim indicated that they no longer would testify, so the case became “evidence driven.” Most prosecutors then discovered that neither their office nor the police had preserved enough evidence to go forward with this case, so the cases are dismissed.

  • Despite the fact that this is the 21st century, most prosecutors dread going to a jury on a DV case. Usually, they lose, so the prosecutors pursue a plea bargain to a lesser charge or simply to time served.


So, presently up to 95% of these cases are plea bargained or dismissed.


The ideal in filing criminal DV cases is that it would highlight to all involved in the system the complexity of DV. In the ideal, parties would get to the underlying issues and resolve cases on a long term basis. As part of the intervention, the system would stop the well-acknowledged “cycle of violence.”


Clearly, this is not happening despite the “DV movement” and creating the separate assault charge of “DV.”


Present Domestic Violence Statistics are Overwhelming

Domestic violence facts from the National Coalition Against Domestic Violence (NCADV):

  • On average, nearly 20 people per minute are physically abused by an intimate partner in the United States. During one year, this equates to more than 10 million women and men.

  • 1 in 4 women and 1 in 9 men experience severe intimate partner physical violence, intimate partner contact sexual violence, and/or intimate partner stalking with impacts such as injury, fearfulness, post-traumatic stress disorder, use of victim services, contraction of sexually transmitted diseases, etc.

  • 1 in 3 women and 1 in 4 men have experienced some form of physical violence by an intimate partner. This includes a range of behaviors (e.g. slapping, shoving, pushing) and in some cases might not be considered "domestic violence."

  • 1 in 7 women and 1 in 25 men have been injured by an intimate partner.

  • 1 in 10 women have been raped by an intimate partner. Data is unavailable on male victims.1

  • 1 in 4 women and 1 in 7 men have been victims of severe physical violence (e.g. beating, burning, strangling) by an intimate partner in their lifetime.

  • 1 in 7 women and 1 in 18 men have been stalked by an intimate partner during their lifetime to the point in which they felt very fearful or believed that they or someone close to them would be harmed or killed.

  • On a typical day, there are more than 20,000 phone calls placed to domestic violence hotlines nationwide.

  • The presence of a gun in a domestic violence situation increases the risk of homicide by 500%.

  • Intimate partner violence accounts for 15% of all violent crime.

  • Women between the ages of 18-24 are most commonly abused by an intimate partner.

  • 19% of domestic violence involves a weapon.

  • Domestic victimization is correlated with a higher rate of depression and suicidal behavior.

  • Only 34% of people who are injured by intimate partners receive medical care for their injuries.

History

Luckily, during the 1980’s many jurisdictions created a separate crime of domestic violence. Some argued against this new crime stating that the crime of assault already covered such. But the creation of this new crime brought an emphasis and maybe a realization that DV should not be treated as routine.


Because of the complexity of DV, problem solvers including prosecutors need every tool in the toolbox to manage it. Mediation is one of those valuable tools. During the 1990’s mediation was denigrated by some who did not really understand it. They derided it by saying mediation was mediating how much violence should occur. Of course, that was not the case.


Mediation as well as counseling, prosecution, shelters, etc. are all valuable tools in managing DV cases.


Before the 1980’s when police were called to a domestic situation, they would typically advise the man “to walk around the block and cool down.” The mostly male police would interrogate the female to discern how she had instigated this violence.


In the prosecutor’s offices, females often accompanied by a friend, family member, or neighbor would file the charge only to request dismissal of the charge 24-48 hours later, usually accompanied by the offender. The offender would often tell the tale of the woman falling down the stairs.


Columbus, Ohio, Night Prosecutor’s Program (NPP): Funded by the U.S. Department of Justice as an experiment, the NPP was created using law students to mediate criminal disputes. Many of these crimes involved neighbors, family, small businesses, universities, fraternities, consumer issues etc. If both parties appeared, the resolution rate hovered around 90%.


Quickly it was recognized that DV issues were the most problematic and needed extra attention. The prosecutor then partnered with the Battered Women’s Shelter to assist during the mediations. A prosecutor counseling program was created consisting of many social work students from nearby universities overseen by a Masters in Social Work, Victims’ Advocate.


From that point on, a typical mediation consisted of the law student mediator and the social work student counselor.


The Cycle of Domestic Violence

Entire books and journals have been written about the cycle of violence.


Regrettably, most of the time when a domestic violence perpetrator is identified, violence will not be new to that person. There are exceptions but so many times, one will discover the perpetrator has been victimized often by the father and the father would have been victimized. Thus, the cycle of violence.


More likely than not when one has identified the victim of domestic violence, violence will not be new to their life. More likely than not there has been violence perpetuated in that family, usually by a male


Criminal prosecutors have been so frustrated by this cycle. So in Case X, they, along with the support network, work diligently to separate the victim from the abuser. Sometimes months or years later, the victim becomes associated with another perpetrator. This is the psychological aspect. Usually the victim is lured by the goodness of the perpetrator: “You are my baby and I will take care of you, no matter what.” The perpetrator will then start to isolate the victim by disdaining the victim’s friends first and family later. The perpetrator wants the total focus and dependence of the victim.


The opposite also occurs. The DV Perpetrator is attracted to those who desire a protector, “a real man.”


Three Stages of the Cycle

Another perspective of the cycle of violence is outlined by three stages, according to Peace Over Violence:


  1. First is the tension building phase. In this phase, the batterer gets edgy and tension begins to build up. This is where the battered person may feel like they are walking on eggshells.

  2. Second is the actual explosion phase where the physical abuse occurs. It can last from a few minutes to several hours.

  3. Third is the honeymoon phase. The perpetrator may be sorry or act like nothing happened; but is still interested in making up and may even promise never to do it again. However, the tension almost always starts to build again, thus continuing the cycle.

It is fascinating that on the average, the victim leaves 7-12 times before the last and final departure.


The Life and Gradations of DV

There is a range to the Power and Control Issues, according to Peace Over Violence.


  • Emotional Abuse: Putting her down or making her feel bad about herself, calling her names, making her think she’s crazy, and mind games.

  • Economic Abuse: Trying to keep her from getting or keeping a job, making her ask for money, giving her an allowance, or taking her money.

  • Sexual Abuse: Making her do sexual things against her will, physically attacking the sexual parts of her body, or treating her like a sex object.

  • Using Challenge: Making her feel guilty about the children, using the children to give messages, using visitation as a way to harass her.

  • Threats: Making and/or carrying out threats to do something to hurt her emotionally, threaten to take the children, commit suicide, or report her to welfare.

  • Using Male Privilege: Treating her like a servant, making all the “big” decisions, acting like the “master of the castle.”

  • Intimidation: Putting her in fear by using looks, actions, gestures, loud voice, smashing things, destroying her property.

  • Isolation: Controlling what she does, who she sees and talk to, where she goes.


Is Domestic Violence Ubiquitous?


For almost fifty years, there has been the mantra from domestic violence advocacy groups supported by the mass media that DV affects all socio-economical classes equally and that all are equally likely to be affected by DV. This has been a great marketing and public relations approach:


  • One, it keeps every one thinking about DV instead of relegating to certain sectors of the population.

  • Second, this in turn makes it possible to raise monies from all groups.


Statistics of reported criminal DV seem to tell a different story, with lower socio-economic populations suffering disproportionately. Overall, about 2% of US women suffer annually from DV. There may be a variety of reasons for this. The lower socio-economic usually live in disadvantaged areas and neighborhoods. Elements of these disadvantaged areas seem to be:


  • Higher percentages of unemployment and underemployment

  • Low levels of informal social control

  • Men may be less constrained by strong normative expectations against violence

  • Men in these neighborhoods have less fear of social disapproval

  • There appear to be weak social bonds among neighbors

  • Women may be more isolated in these overcrowded neighborhoods


One long time prosecutor whose specialty was domestic violence gets to the core:


Despite the domestic violence education and public relations, my experience has been that a huge disproportion of DV cases that come to the prosecutor’s office come from poor, young African-American females. Most of these cases involve “boyfriends,” not husbands or fathers. Almost all involved the women having children or being pregnant. Yes, up to 90% involved alcohol. This does not mean alcohol excuses the DV, it is clear that alcoholism is a factor. It may help to explain why the vast majority of cases reported occur on a Friday or Saturday, late evening or early morning.


It may be that DV occurs in all socio-economic groups, but these women who report such to a prosecutor’s office may need the most help.


The Realities of the Law Enforcement and Legal System In Relation to DV

DV advocates who believe that mediation is not a tool in fighting DV seem to idealize the legal and law enforcement system. Most police, judges, and lawyers will admit that they are not well trained in managing DV cases. Further, most will declare that they are not on the job to deliver counseling.


Here’s a few actual real life examples and the DV court statistics will be revealed.:


Example: Progressive Montgomery County, Maryland


-60 Years Ago: At their passing, A and B had been married 57 years. At the beginning of their marriage, there was much DV. A would call the police. The police would arrive and ordered B to “walk around the block to cool off.” Feeling hopeless, A stopped calling the police. Five children lived in the DV household.


-This Year: A and B had been together for 10 years. Things were tense during the past year. A possibly accidentally unplugged the TV of which B was watching. B was furious and socked A in the mouth resulting in a bloody lip. A ran to the bedroom and locked the door. B kicked down the door. Police were called. They took pictures of the injuries, indicated they would file a restraining order and arrested B. B spent the night in jail and was released on B’s recognizance. A and B, using a neutral friend, exchanged property. B insisted the police be present. The police laughed at the situation. It has been several months and A has not heard from the police or the court system. B does not even have a copy of the TPO.


Example: A and B marry. B was warned about A in regards to his disrespectful treatment of his mother and sisters. Further, A’s father had a long history of DV. A and B marry and the DV begin. During one horrible episode their child of 7 years old calls the police. A is arrested and convicted of DV. During a contentious 2 years, they finally divorce.


- A’s family was of the upper economic class in this small Midwest town, so his family knew and contributed to judicial and lawyer campaigns. A sues for custody of the 4 kids. This case was assigned to A’s family’s friend: the Judge. B was represented by Legal Aid. The judge awarded full custody to A, the person convicted of DV, seemingly because B, the mother, did not have a firm place to live and not a firm job.


Each child upon becoming 16 transferred to the care of the Mother B and her second husband.


Example: DV victim arrives at the courthouse for DV hearing. The judge asked her if she had been smoking marijuana before the court hearing. She admitted yes, and she was jailed.


Example: 911 was called by two folks who claimed they saw A, the man hitting B, the woman. The police stopped the van. During the police questioning B, highly emotional and crying, admitted that she may have started it by smacking A. Then, A grabbed her by the neck, etc. The police responded that maybe if anyone is to be arrested, maybe it was B. The police then advised the couple not to stay the night together and left. A was later found dead, most likely murdered. B has disappeared.


Mother in District of Columbia Murdered Before TPO was Served.

A woman was granted a temporary protective order. The police were searching to serve him, to find him whether he was in DC or Maryland. Before he was serviced, he killed the woman. In this case, she did everything the police recommended, including keeping a log, copies of texts, and pictures.


Examples Summary: So, what are the takeaways?


  • Progress has been made.

  • Much more awareness and education is necessary.

  • People should not idealize the law enforcement or legal system.

As the National Center for Women and Policing noted in a heavily footnoted information sheet, ‘Two studies have found that at least 40 percent of police officer families experience domestic violence, in contrast to 10 percent of families in the general population.


DV is complex and DV managers need a vast array of tools.


For those investigations that did lead to prosecution, 97% resolved through plea bargaining. Most single charge misdemeanor DV police reports were found to be “dead upon arrival” at the prosecutor’s office, with only 29% resulting in any type of criminal conviction…Three quarters of all “felony” DV, as labeled by police, either resulted in no criminal prosecution or prosecution as a misdemeanor.


What do all of these egregious situations have in common? All of the decision-makers in these scenes are males. Who perpetuates violence crimes? 98% are males.


Conclusion

Although much progress has been made, the two typical questions of the DV Victim these days continue to be:


  • What did you do to instigate?

  • Why don’t you simply leave?


If your only tool is a hammer, everything looks like a nail. Maslow


Problem solvers need many tools in their tool box including mediation. Mediation has great potential in a wide variety of cases, including criminal cases which include domestic violence.


Of course, mediation is not appropriate for many cases. Thus, insightful intake of complaints must be effectuated especially in criminal cases. If violence is involved, this is a cause for even greater examination.


There are many criminal cases that involve violence in the neighborhood, community meetings, political meetings, HOA meetings, fraternities, sororities, schools, colleges and yes, the home. This violence needs to be examined in terms of intensity. Was this a one-time event? Is it chronic? Frequency is a vital issue.


What is the first most appropriate resolution step? In some cases, maybe arrest and conviction is the best first step. People need to realistically examine their law enforcement and legal system options. They need to examine the actual practice, not the ideals.


Mediation might be most appropriate for the first time violence episode, sometimes being accidental or arising out of high emotions.


Those who are involved in frequent violence or bullying may need a disciplinary, legal approach.


After careful intake, the mediator may design the process to accommodate the situation.


Maybe the victim needs an advocate at the mediation. Maybe the mediation is conducted per shuttle sessions so the parties are not seated in the same room together.


*Domestic Violence defined: Laws vary by state, but domestic violence is generally defined the crime of assault where the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant. A person may often be arrested for domestic violence without a warrant.


** A domestic violence advocate is a person who works for an organization that provides help to domestic violence victims. S/he must have received specialized training in counseling domestic violence victims.

A domestic violence advocate’s legal advocacy services for victims of abuse are:

a. to notify victims of, and going with them to, court hearings;

b. to educate victims about the court system and domestic violence;

c. to help victims to fill out applications for restraining orders; and

d. to helping victims to communicate with prosecutors, probation officers, and court personnel and Safety planning.


Notes

Improved court convictions: There appears to be evidence that when multiple DV charges are listed, the likelihood of conviction is higher. So, when the police arrive on a DV situation that involves 4 kids and the mother, 5 charges should be filed. If it is a single charge, the conviction rate is very low.


Note: Intersection between males and violence


It should be noted that domestic violence especially by males is a component of a wider discussion. Most would accept that males are more violent than females.


-95% of all murders in US are committed by males.


Why is this? Some would say this is the indirect effect of evolved differences in male and female bodies pushing them into defined roles of soldiers or care giving mothers. Are there biological origins? What about “the Young Male Syndrome.”


Most would agree that social forces are surely at play. Watch almost any Netflix movie or TV shows. During high emotions, men break things; women, cry.


One example:

Liam Hemsworth in the movie Killerman is frustrated with his loss of memory post accident. What does he do? He breaks a patio door window.


Note: Intersection of Race and Domestic Violence


• 45.1% of Black women and 40.1% of Black men have experienced intimate partner physical violence, intimate partner sexual violence and/or intimate partner stalking in their lifetimes.

• 31.8% of Black women and 16.8% of Black men have experienced one or more of the following intimate partner violence-related impacts: being fearful, concerned for safety, any post-traumatic stress disorder symptoms, injury, need for medical care, housing services, victim advocate services, and/or legal services, missed at least 1 day of work or school, and contacting a crisis hotline.5

• 41.2% of Black women and 36.3% of Black men have experienced intimate partner physical violence in their lifetimes.

• 53.8% of Black women and 56.1% of Black men have experienced psychological aggression by an intimate partner in their lifetimes.

• 8.8% of Black women have been the victims of intimate partner rape in their lifetimes.

• 17.4% of Black women and 14.8% of Black men have experienced intimate partner sexual violence (other than rape) in their lifetimes

• 9.5% of Black women have experienced intimate partner stalking in their lifetimes.



Note: Intersection of Age and Domestic Violence


It is also interesting that those who are co-habitating are more likely to be involved in DV than those married.

Also, younger men are more likely than older men to be perpetrators.


We know that poverty disproportionately affects women and single moms. In 2013, nearly 16 percent of women and nearly 40 percent of families with children headed by a woman lived in poverty, higher than their male counterparts. We know that women who are poor are more likely to suffer from health problems and are more likely to be survivors of domestic violence. We also know that children who grow up poor are more likely to suffer from health issues, developmental delays, behavioral problems, lower academic achievement, and unemployment in adulthood. If we fail to address poverty, particularly amongst women and children, we only perpetuate the cycle of poverty, inequality, and domestic violence.

Resources:

Anita Vestala: Mediation and Domestic Violence.


1 comentario


Larry Ray
Larry Ray
18 nov 2021

So many DV advocates believe that victims should turn to the police and courts, not mediation. I think they idealize the police and the courts in managing DV cases. I have a friend who is a DV victim. The person called the police and the perpetuator was arrested and charged. It has been two months and this victim has heard nothing from the police or prosecutor. This does not meet our expectations.

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