Moving Out of the 1990s: An Argument for Updating Protocol on Divorce Mediation in Domestic Abuse Cases

Abstract

Today, an overwhelming number of states and local jurisdictions presume domestic violence victims unsuitable for divorce mediation. The National Council of Juvenile and Family Court Judges ("NCJFCJ") Model Code on Domestic and Family Violence ("Model Code") and similar state codes have codified this presumption. This Article argues that these statutes grew out of 1980s and early 1990s critiques articulating concerns that mediation threatens domestic violence ("DV") victims' safety and interests. These critiques imagined a model of mediation that ultimately did not comport with the model of mediation that emerged in family courts throughout the United States in the 1990s. Court mediation today tends to be evaluative rather than facilitative and settlement focused rather than understanding based. These features of court mediation both protect the victim's interests better than more facilitative models and allow certain precautions to be taken for victims who are less suited to the quintessential private mediation, with its specific and distinct goals. This Article argues that because legislation crafted in response to critiques of divorce mediation for domestic violence victims in the 1980s and 1990s inaccurately reflects the nature of court mediation today, this legislation fails to respond to the full range of DV victim experiences, needs, and abilities. Excessive focus on the danger of mediation for victims without consideration of the costs and risks of the most common alternative-litigation-is a mistake. These protocols are outdated and ineffective: they discourage or altogether prohibit DV victims from participating in mediation even as empirical studies have demonstrated a number of compelling reasons for their participation in it, and they do so in order to protect them from dangers that appear today to be largely illusory. We should reform policies accordingly.