Mediation/Collaborative Law: Exploring a New Combination in Alternative Dispute Resolution in Cases of Divorce and Domestic Violence

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MEDIATION/COLLABORATIVE LAW: EXPLORING A NEW COMBINATION IN ALTERNATIVE DISPUTE RESOLUTION IN CASES OF DIVORCE AND DOMESTIC VIOLENCE

Claudia Lanzetta*

I. INTRODUCTION

Determining whether couples with a history of domestic violence in their relationships are good candidates for mediation is a question that has been contemplated by many. Considered here is a proposal to create a new combination in the field of Alternative Dispute Resolution (“ADR”) to address the problems presented by domestic violence in divorcing couples—Mediation/Collabora- tive Law. This new combination seeks to mitigate the problems faced by the victim and to remove the obstacles present in the processes of mediation and collaborative law when engaged in separately. Those that have addressed the issue of domestic violence in divorce have approached it from many angles and have reached a variety of conclusions. These range from the extreme that mediation is never appropriate when domestic violence is a factor and the process should be denied to those couples, to the view that it is always appropriate and should be mandatory.1 The first position ignores the problem that denying couples access to mediation who

* Claudia Lanzetta is the Principal Law Clerk for Queens County Supreme Court Justice Rudolph E. Greco, Jr. She is a certified mediator and arbitrator with an LL.M. in Dispute Reso- lution and Advocacy from the Benjamin N. Cardozo School of Law. The article was completed under the supervision of Professor Robert Kirkman Collins. 1 See Nancy Ver Steegh, Yes, No, and Maybe: Informed Decision Making About Divorce Mediation in the Presence of Domestic Violence, 9 WM. & MARY J. WOMEN & L. 145 (2003); compare Carrie-Anne Tondo et al., Mediation Trends, 39 FAM. CT. REV. 431 (2001), with Pene- lope E. Bryan, Reclaiming Professionalism: The Lawyer’s Role in Divorce Mediation, 28 FAM. L.Q. 177, 203–05 (1994); see also Susan Landrum, The Ongoing Debate About Mediation of Domestic Violence: A Call for Empirical Studies of Mediation Effectiveness, 12 CARDOZO J. CON- FLICT RESOL. 425 (2011); David B. Chandler, Violence, Fear, and Communication: The Variable Impact of Domestic Violence on Mediation, 7 MEDIATION Q. 331, 333 (1990); see generally Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991); cf. Joshua D. Rosenberg, In Defense of Mediation, 33 ARIZ. L. REV. 467 (1991); Douglas D. Knowl- ton & Tara Lee Muhlhauser, Mediation in the Presence of Domestic Violence: Is It the Light at the End of the Tunnel or Is a Train on the Right Track?, 79 N.D. L. REV. 255, 266–68 (1994).

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330 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 exhibit or have revealed the presence of domestic violence in their relationship subjects them to the battlefield that is matrimonial liti- gation2; the latter risks exposure of the victim to her3 abuser in an intimate setting raising issues of safety and threatening the mediation process itself.4 There is also a moderate view that mediation is sometimes appropriate, but the determination to mediate when domestic violence is present depends upon the consideration of many factors. These factors include the couple themselves, their current living situation, the type and severity of the domestic violence, and the mediator and his or her ability and comfort in mediating these cases. To that end, some authors have posited that the controversy is not “Should mediators mediate divorces where domestic violence is a factor?” but rather, “How can these divorces be mediated?”5 Broad answers to this question include: 1) use of preliminary screening tools to determine a couple’s suitability for the process, and to determine what procedural remedies would be appropriate to address the presence of domestic violence;6 2) implementing safeguards within the process itself, such as setting specific ground rules to regulate the parties’ interactions, both during the mediation session and outside of it;7 and 3) requiring specialized training and qualifications for mediators dealing with these difficult cases.8

2 Engaging in litigation arguably exasperates the tensions that exist in these types of relationships and can prove more harmful to the victim and family structure. See Marsha Kline Pruett & Tamara D. Jackson, The Lawyer’s Role During the Divorce Process: Perception of Par- ents, Their Young Children, and Their Attorneys, 33 FAM. L. Q. 283, 298 (1999). Additionally, it has been said that simply because a wife has been abused, she should not lose her right to mediate, thus exposing her to further abuse perpetrated by the litigation system. See Kathleen O’Connell Corcoran & James C. Melamed, From Coercion to Empowerment: Spousal Abuse and Mediation, 7 CONFLICT RESOL. Q. 303, 313 (1990). 3 For the purposes of this paper it will be assumed that women are more likely the victims of domestic violence as statistically speaking this is the case. See DIANE KIESEL, DOMESTIC VIO- LENCE: LAW , POLICY, AND PRACTICE 5 (2d ed. 2017). 4 The hallmarks of the process and the threats thereto are discussed in further detail in Section II.C. 5 See Stephen K. Erickson & Marilyn S. McKnight, Mediating Spousal Abuse Divorces, 7 CONFLICT RESOL. Q. 377 (1990); see also Rosenberg, supra note 1. 6 See, e.g., Landrum, supra note 1, at 448–53; Ver Steegh, supra note 1, at 194–95; Donna Guion, Domestic Violence and Mediation, 15 TEX. WESLEYAN L. REV. 545, 546–47 (2009). 7 See, e.g., Landrum, supra note 1, at 459–63; Anita Vestal, Domestic Violence and Media- tion: Concerns and Recommendations, MEDIATE.COM (May 2007), https://mediate.com/articles/ vestala3.cfm. 8 See, e.g., Rene L. Rimelspach, Mediating Family Disputes in a World with Domestic Vio- lence: How to Devise a Safe and Effective Court-Connected Mediation Program, 17 OHIO ST. J. ON DISP. RESOL. 95 (2001), citing Jennifer P. Maxwell, Mandatory Mediation of Custody in the Face of Domestic Violence: Suggestions for Courts and Mediators, 37 FAM. & CONCILIATION CTS. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 3 26-APR-19 11:42

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These solutions, however, bear problems of their own and within the process. For example, there are multiple methods and techniques for preliminary screening9 and it is difficult to determine which would be the best to employ in any given case. Addi- tionally, the screening means are generally subjective, and rely on the victim’s willingness to disclose information and to be truthful;10 this reliance in the presence of domestic violence can be misplaced and questionable. The safeguards that can be employed during the process, such as setting strict ground rules, or utilizing different techniques or communication methods other than face-to-face dialogue, neither meet the issue of a power imbalance head-on, nor do they directly address a victim’s lack of self-determination. Also, those protections may distort the mediation process, resulting in a loss of its essential hallmarks and benefits.11 Finally, even with more rigorous training and qualification requirements, mediators may still not be equipped to handle the many concerns domestic violence presents. Asking them to do so potentially compromises their necessary neutrality, places too much responsibility on them, and may be outside the scope of the tasks they are meant to perform and their role in the mediation.12 As a means to address these problems it has been suggested that instead of using mediation as an alternative to litigation in the domestic violence context, the parties employ the relatively new process of collaborative law.13 Collaborative practice has as its defining feature an agreement between the lawyers to work together to help parties resolve their dispute outside of court and, in the event the collaborative process fails, neither attorney will partici-

REV. 335 (1999); see also Nancy Thoennes et al., Mediation and Domestic Violence: Current Policies and Practices, 33 FAM. & CONCILIATION CTS. REV. 6, 7 (1995). 9 See Desmond Ellis & Noreen Stuckless, Domestic Violence, DOVE and Divorce Media- tion, 44 FAM. CT. REV. 658 (2006); Landrum, supra note 1, at 448–53; Ver Steegh, supra note 1, at 194–95. 10 See Ver Steegh, supra note 1, at 194–95. 11 See supra note 4; see Joe Dillon, 10 Biggest Divorce Mediation Benefits, EQUITABLE MEDI- ATION, https://www.euitablemediation.com/blog/10-biggest-divorce-mediation-benefits (last visited Mar. 1, 2018) (discussing that the benefits of divorce mediation that may be affected by the imposition of protective measures are its timeliness and cost efficiency, its likelihood to produce thorough and practical agreements that yield greater compliance, and its opportunity to manage the emotional elements of a conflict and teach the parties effective communication skills); see generally Chandler, supra note 1. 12 See Rimelspach supra note 8; Erickson & McKnight, supra note 5, at 378–79. 13 See, e.g., Margaret B. Drew, Collaboration and Coercion: Domestic Violence Meets Collab- orative Law, 1 IRISH L.J. 27 (2012); see generally NANCY J. CAMERON ET AL., COLLABORATIVE PRACTICE: DEEPENING THE DIALOGUE (2d ed. 2014). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 4 26-APR-19 11:42

332 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 pate in any court proceedings.14 In conjunction with this agreement, the attorneys also enter into a participation agreement that governs their interactions with each other. They stipulate to coop- erate in a respectful manner and to avoid common litigation tactics, such as unreasonable and excessive motion practice, or prolonged and burdensome discovery; they also agree to participate in a full and honest exchange of all relative information.15 (These and addi- tional aspects of the collaborative practice will be discussed in detail below). This paper takes the suggestion of collaborative law practice for divorcing couples with an element of domestic violence in their relationship a step further, and proposes a deeper collaboration: a new combination called Mediation/Collaborative Law, or “Med/ Collab.” The discipline of Alternative Dispute Resolution16 and its practitioners are not unfamiliar with collaborations. Hybrid processes on the ADR continuum17 include Med/Arb and Arb/ Med.18 In the same spirit, Med/Collab presents the best aspects and benefits of each process, while addressing and overcoming the difficulties each process separately faces in dealing with domestic violence. Part II of this paper will revisit the definition of domestic violence. This will include a discussion of the spectrum of domestic violence, as well as the cycle and culture of violence, in an effort to demonstrate the challenges of defining the term, and how those

14 CAMERON ET AL., supra note 13, at 6. 15 Id. at 6–7. 16 The term “alternative” is employed with reluctance as the author and many ADR practitioners disagree with this qualification. The dispute resolution processes, including mediation, employed to facilitate resolution of matters without resorting to courts or traditional litigation are hardly alternative, and have become increasingly commonplace. Some have even suggested changing the “A” in ADR from alternative to appropriate, quoting David M. White, Esq., Ad- junct Law Professor and Director, Conflict Management Program Seton Hall University School of Law. 17 The ADR continuum is a visual representation of all of the processes of dispute resolution from negotiation through and including litigation. As you move from left to right, the process move from consensual to adjudicative and from informal to formal. Additionally, at the far right the parties determine the outcome and retain control of the process whereas at the far left a third party decides for the parties and they cede control of the process. See generally AAA, https://www.adr.org (last visited Mar. 2018). 18 See CARRIE J. MENKEL-MEADOW ET AL., DISPUTE RESOLUTION, BEYOND THE ADVER- SARIAL MODEL 526–27 (2d ed. 2011). Med/Arb and Arb/Med combine the processes of mediation and arbitration in reverse variations. When parties engage in Med/Arb they attend mediation sessions followed by arbitration if they fail to reach an agreement with the third-party neutral facilitator. In the reverse variation, Arb/Med, an arbitrator hears the parties’ presenta- tions, often makes a sealed award, and then attempts to mediate the dispute. If this facilitated negotiation fails to result in settlement the arbitrator will then release his award. Id. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 5 26-APR-19 11:42

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challenges effect the mediation process. Part III will provide ex- amples of how the issue of domestic violence has been addressed in mediation, followed by a discussion as to how these methods are inadequate. Part IV will explore the Med/Collab proposal—first presenting an overview of the collaborative law practice, and then analyzing the new combination as a more beneficial and advanta- geous way of dealing with the presence of domestic violence in the negotiations of divorcing couples. Doing so will include an exami- nation of how this process would differ from represented mediation, and how that difference creates benefits.

II. DOMESTIC VIOLENCE: A DEFINITION AND ITS CHALLENGES

Domestic violence is defined by the National Coalition Against Domestic Violence as “the willful intimidation, physical assault, . . . and/or other abusive behavior as part of [a] systemic pattern of power and control, perpetrated by one intimate partner against another. It includes physical violence, sexual violence, threats, and emotional/psychological abuse. The frequency and severity of domestic violence varies dramatically.”19 Domestic violence has also been described by the New York State Office of Court Systems ADR Programs as: a pattern of behavior used in an intimate relationship by a partner to establish power and control over the other partner. This coercive control is for the deliberate purpose of domination. The abuser uses physical, sexual, social, emotional and economic abuse to terrorize, intimidate, isolate and manipulate the targeted partner. In an abusive relationship, the batter’s inten- tion is to control his partner and to force [her] to obey. Domes- tic violence occurs among all socioeconomic, racial, religious, and cultural groups. Without intervention, it will escalate in frequency and intensity.20 These definitions, and the myriad of others that exist,21 highlight that the term “domestic violence” does not connote a single

19 NAT’L COAL. AGAINST DOMESTIC VIOLENCE, WHAT IS DOMESTIC VIOLENCE?, NCADV.ORG, https://ncadv.org/learn-more (last visited Mar. 1, 2017). 20 See Susan L. Pollet, Mediating Domestic Violence: A Potentially Dangerous Tool, 77 N.Y. ST. B.A. J. 42, 42 (2005), citing Domestic Violence Screening Training Curriculum, Policy of N.Y.S.’s Unified Court Sys., Office of ADR Programs, CDRC Program Manual, Guideline II, ch. 4. 21 See, e.g., Ver Steegh, supra note 1, at 151–52, citing Mary Ann Dutton, Expert Witness Testimony, in THE IMPACT OF DOMESTIC VIOLENCE ON YOUR LEGAL PRACTICE: A LAWYER’S \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 6 26-APR-19 11:42

334 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 phenomenon, but encompasses a continuum of behavior—some of which is not easily evident to observers. They also demonstrate that domestic violence is not limited to any one archetype and can appear in many diverse groups. What is readily evident is that an essential element of domestic violence and a fundamental dynamic of that relationship is power or control through fear. This illumi- nates the extreme inequality existent in these relationships22 that poses a direct challenge to one of the principles of divorce mediation.23 Even more so, these definitions indicate that domestic violence is a persistent and escalating condition in a relationship.

A. The Spectrum, the Cycle, and the Culture24

This continuum of behavior has also been defined as “The Spectrum of Domestic Violence” and is illustrated by the “Power and Control Wheel,” set out in the Appendix.25 This “Wheel” is a tool that helps “in understanding the overall pattern of abusive and violent behaviors, which are used by a batterer to establish and maintain control over his partner.”26 It was developed in the early 1980s in Duluth, Minnesota through discussions between advocates and battered women.27 At the outer ring is physical and sexual violence, the most drastic and destructive consequence of domestic violence. At the center of the wheel is power and control, an abuser’s ultimate goal. It is the hub that controls, defines, and holds these relationships together. The eight spokes of the wheel—coercion and threats, intimidation, emotional abuse, isola- tion, minimizing, denying and blaming, using children, economic

HANDBOOK §8–81, §8–8 (Deborah M. Goelman et al. eds., 1996). Ver Steegh devotes a section of her piece to discussing the various types and profiles of domestic violence in an extremely comprehensive fashion. See Ver Steegh, supra note 1, at 152–59. 22 See Sarah Krieger, The Dangers of Mediation in Domestic Violence Cases, 8 CARDOZO WOMEN’S L.J. 235, 236–38 (2002). 23 See supra note 4; see infra Section II.C.2. 24 This and the following sections will only touch upon aspects of domestic violence. The topic is complex and multifaceted with entire volumes devoted to its treatment. Without taking anything away from the severity of the issue its analysis in this paper is offered in an abbreviated and respectful fashion. 25 See also NAT’L CTR. ON DOMESTIC AND SEXUAL VIOLENCE, Power and Control Wheel, http://www.ncdsv.org/images/PowerControlwheelNOSHADING.pdf (last visited Apr. 1, 2018); Domestic Abuse Intervention Project, Understanding the Power and Control Wheel, THEDULUTHMODEL.ORG, https://www.theduluthmodel.org/wheels/understanding-power-con trol-wheel/ (last visited Apr. 1, 2018). 26 Id. 27 Id. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 7 26-APR-19 11:42

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abuse, and male privilege28—are tactics that a batterer employs to achieve his objective.29 These spokes or tactics are also domestic violence in and of themselves, which further exacerbates and com- plicates the issue. Physical and sexual violence often bear visible or detectable evidence, whereas these strategic behaviors do not. The Power and Control Wheel also represents a visual model of the cyclic nature of domestic violence theorized by Lenore Walker in the late 1970s.30 The insidious and repetitive “Cycle of Violence”31 described by her had three phases: (1) tension building; (2) acute explosion; and (3) honeymoon. In the first phase, tension builds over common domestic stressors (such as finances, work, or children) and the abuser begins to act out in various ways, such as becoming increasingly sensitive and moody, withholding af- fection, instigating arguments, and isolating, threatening, or criticizing the victim.32 The victim, in response, attempts to calm or nurture her abuser; she will become compliant, quiet, and disen- gaged from family and friends, may try to reason with or appease her abuser, and finally engage in denial, self-blame, and excuse- making.33 Eventually, the tension will escalate to a point where an acute, violent incident occurs—phase two in the cycle.34 This phase is characterized by an explosion of harm, including extreme verbal abuse, severe assaults, deviant sexual violence, or even rape.35 The victim will typically try to protect herself in any way possible, and will continue her attempts to calm and reason with the abuser.36 It is also in this phase when the victim may try to enlist police assistance, and may retaliate and leave her abuser.37 Unfortunately,

28 Id.; See Appendix. 29 Those discussing the Power and Control Wheel make note to say that all relationships have the presence of some of the eight tactics. However, the difference in relationships with an abuser/victim dynamic is how the victim must factor the abuse into their response. See Domestic Abuse Intervention Project, supra note 25.

30 See generally LENORE E. WALKER, THE BATTERED WOMAN (1979); see also KIESEL, supra note 3, at 9–10; Corcoran & Melamed, supra note 2, at 306–07; Ver Steegh, supra note 1, at 152–54. 31 See Appendix for a visual depiction.

32 See WALKER, supra note 30, at 56–59; Krieger, supra note 22, at 238–40, citing Cycle of Violence, Catalog, Duluth Domestic Abuse Intervention Project: National Training Project, THEDULUTHMODEL.ORG, http://duluth-model.org/daipmain.htm (last visited Mar. 10, 2002). 33 Id.

34 See WALKER, supra note 30, at 59. 35 Id.; see also Krieger, supra note 22, at 238–40. 36 Id. 37 Id. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 8 26-APR-19 11:42

336 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 this is not often the response, and the victim more frequently remains with the batterer.38 These first two phases in the cycle focus on weakening the victim, crippling her self-confidence, and annihilating her self-worth to the extent that she no longer believes she can function without her abuser. These are immediately followed by the third phase, aptly called the “honeymoon” phase,39 in which the abuser ex- presses extreme contrition and remorse, makes romantic overtures, promises to refrain from future abusive conduct, and exhibits ex- emplary behavior.40 The victim is forgiving, apologetic, helpful, re- lieved, happy, and hopeful.41 “These positive feelings [however] gradually deteriorate and are followed by an atmosphere of sur- vival as tension again begins to build,”42 and the cycle continues. Unless the pattern is broken, the violence will escalate with each repetition, both in frequency and severity; the honeymoon phase will ultimately disappear, and the cycle will repeat more rapidly and violently between tension, threats, and abusive incidents.43 It has been further hypothesized that chronic and persistent exposure to this cycle leads the victim to acquire and suffer from “learned helplessness”44—a phrase coined to explain why a woman would remain with an intimate partner who abused her. The “learned helplessness renders a woman . . . unable to see a way out of [her] abuse, [and makes her] submissive and helpless.”45 It is also part of a larger system within the domestic violence relationship that has been characterized by psychologists and social scien- tists as the “culture of battering.”46 The culture is a summary of all that is known about domestic violence so far—its pervasive and cyclical nature—as well as a reflection of the relational context—

38 See Krieger, supra note 22, at 238–40. 39 See WALKER, supra note 30, at 65. 40 Id. 41 Id. 42 See Corcoran & Melamed, supra note 2, at 306. 43 Id. at 307. 44 See WALKER, supra note 30, at 47–50; KIESEL, supra note 3, at 9–10; cf. Karla Fischer, Neil Vidmar & Rene Ellis, The Culture of Battering and the Role of Mediation in Domestic Violence Cases, 46 SMU L. Rev. 2117, 2136 (1993) [hereinafter Fischer et al.] (discussing that many battered women actively seek help and openly rebel). Additionally, this theory has been criticized as being too limiting. See Ver Steegh, supra note 1, at 153 citing Mary Ann Dutton, Critique of the “Battered Woman Syndrome” Model, http://www.aaets.org/article138.htm. 45 See WALKER, supra note 30; see generally KIESEL, supra note 3. 46 See generally Fischer et al., supra note 44. The authors discuss the “culture of battering” as having three elements: (1) the abuse which consists of both physical and non-physical forms; (2) the systematic pattern of domination and control that a batterer exerts of over his victim; and (3) hiding, denying, and minimizing the abuse as a typical coping strategy. Id. at 2141. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 9 26-APR-19 11:42

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the interactions between a victim and her abuser—of the domestic violence issue. Meaning, it is more than the types of abuses that occur and more than the abusive pattern; it is an encapsulation of both the abuse and the system of violence, with a focus on the dynamics of these relationships.47 The “culture of battering” concen- trates on an integral part of the interactions between a victim and her abuser—the communication that takes place through subtle phrases, exchanges of eye contact, facial expressions, gestures, and tones of voice that have symbolic meanings idiosyncratically shared by the two parties.48

B. The Effects and Responses

The effects of domestic violence on a victim are significant, grievous, and complex. There can be obvious physical scars, but it is often the invisible psychological and emotional scars that are more devastating and troubling. “Studies show that almost half of victims of battering and sexual assault meet (and exceed) the crite- ria for Post-Traumatic Stress Disorder (“PTSD”).49 PTSD is a specific set of psychological reactions that include experiencing flashbacks or nightmares, engaging in avoidance behaviors, feeling anger or shame, and suffering from an inability to concentrate or sleep.50 These reactions and the effects of the abuse have led to a diagnosis referred to as “battered woman syndrome.”51 Originally, battered woman syndrome was defined in a general manner as the psychological consequences of domestic violence. This first definition emphasized “learned helplessness” (see above). It was reformulated to include symptoms such as depres- sion and victimization,52 and later, further developed to stress that “[a]ll woman exposed to violence and abuse . . . do not respond similarly, contradicting the mistaken assumption that there exists a

47 See Vestal, supra note 7, citing Mary Ann Dutton, The Dynamics of Domestic Violence: Understanding the Response from Battered Women, 68 FLA. B.J. 24, 24–28 (1994). 48 See Fischer et al., supra note 44, at 2117, 2119. This system of symbols and the content they convey is unknown and often unnoticed by third parties, such as mediators. The obscurity of these interactions however, should not minimize their importance, especially in the context of divorce mediation (discussed in further detail in Section II.C). 49 See Krieger, supra note 22, at 240, citing Maxwell, supra note 8, at 342; see generally Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Bat- tered Woman Syndrome, 21 HOFSTRA L. REV. 1191 (1993). 50 Id. at 1198. 51 See generally Dutton, supra note 49. 52 Id. at 1197 (internal citations omitted). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 10 26-APR-19 11:42

338 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 singular “battered woman profile.” Like other trauma victims, battered woman differ in the type and severity of their psychological reactions to violence and abuse, as well as in the strategies for re- sponding to [it].”53 Strategies towards ending the violence include efforts to es- cape, avoid, and protect that have been categorized as personal, informal, and formal.54 Personal tactics involve a victim’s direct response to the violence, and can take the form of compliance, es- cape, avoidance, resistance, or defense.55 Informal strategies include soliciting help or intervention from friends or neighbors, while formal action plans may include efforts to involve the legal system, both through law enforcement and the courts, as well as in seeking assistance from third parties, such as shelters, specialized support groups, and trained mental health professionals.56 The importance of understanding the definition and effects of domestic violence will become clearer in the following sections. Noteworthy here is the appreciation that: domestic violence encompasses a myriad of behaviors, some of which are not easily ob- servable to outsiders; that it is most often not one episode, but an ongoing self-perpetuating and intensifying cycle; and, that the effect on the victims, as well as their reactions, are as diverse as the violence itself. It is necessary to bear this in mind when consider- ing if separating couples with domestic violence present in their relationship should mediate their divorce.

C. Problems for the Process of Divorce Mediation

1. The Divorce Mediation Process Divorce mediation is most basically an alternative to the special torment that is matrimonial litigation. The purpose of divorce mediation “is to (through the use of a neutral facilitator) help couples directly negotiate the terms of their divorce settlement.”57 In doing so, mediation assumes that the couple wants to reach an agreement and assists the couple in identifying the issues that need to be resolved and to gather the information necessary to make

53 Id. at 1225. 54 Id. at 1227, citing LEE H. BOWKER, BEATING WIFE-BEATING 63–73 (1983). 55 Id. at 1227–28 (internal citations omitted). 56 Id. 57 ROBERT KIRKMAN COLLINS, DIVORCE MEDIATION COMMON SENSE AND THE CRISIS OF DIVORCE 10 (2017). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 11 26-APR-19 11:42

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informed and intelligent decisions; it accepts “that [the couple] alone has the authority, competence, and creativity to come up with the solutions best suited to their own family.”58 Mediation is based on the premises that: parties come voluntarily to the table, ready, willing, and able to negotiate; that the parties will engage each other openly and honestly towards the ends of arriving at a shared agreement; and, that through reaching their own agreements, these agreements are more likely to inspire long-term compliance.59 Finally, it imbues the third-party neutral mediator with the power to facilitate negotiations between the parties by focusing discussions on the couples’ needs and underlying interests, by shap- ing communications and gently intervening in conflicts, and by at- tending to issues such as power imbalances and impractical solutions.60 The mediator is the steward and protector of the process. In summary, the process of divorce mediation has as its hallmarks empowerment, self-determination, third-party neutrality, candor, safety, confidentiality, and a future-orientated perspective.

2. The Problems Domestic violence presents problems both to the battered woman who may engage in mediation and to the process of mediation itself.61 A victim risks exposure to her abuser in an intimate setting, and while the likelihood of physical violence is ameliorated by the presence of the mediator, the potential for the victim to suffer psychological and emotional symptoms62 is certainly present. Also, once outside the confines of the mediation room, a victim is again vulnerable to abuse, especially since separation often triggers or escalates abuse.63 Before addressing the mediation process itself, an immediate issue is identifying the presence, type, and severity of the domestic violence.64 This is clearly complicated by the defini-

58 Id. 59 See Pollet, supra note 20, at 43; Landrum, supra note 1, at 437; Ver Steegh, supra note 1, at 170–71. 60 See generally COLLINS, supra note 57 (discussing the tools a mediator employs during the process which, in response to “impractical solutions,” might include “reality testing” or “test driving”). 61 This paper presumes there is a choice and will not address instances of mandatory mediation, see, e.g., Rimelspach, supra note 8, and Maxwell, supra note 8, which in the opinion of this author and others is an oxymoron. Mediation is defined and touted as a voluntary process. See Menkel-Meadow et al., supra note 18, at 232–33. 62 See Section II.B. 63 See Ver Steegh, supra note 1, at 150; Fischer et al., supra note 44, at 2138–39. 64 See Landrum, supra note 1, at 430; Vestal, supra note 7. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 12 26-APR-19 11:42

340 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 tional issues,65 as well as the tendency to hide, minimize, or nor- malize the behavior as a way of functioning on a daily basis.66 As a whole, the process of divorce mediation, in both its meth- odology and ideology, is threatened by the presence of domestic violence. Fundamentally, mediation embraces a philosophy of har- mony67 and a cooperative procedure used to achieve a mutually agreeable end.68 The very concept of domestic violence directly contravenes any perception of peaceful unity and coordinated effort between the battered woman and the batterer. In fact, it has been argued that to say these central underpinnings can take place in the presence of domestic violence is “an oxymoron.”69 Each hallmark of the process itself (see above) is also chal- lenged when mediating a couple with a history of domestic violence. First and foremost is that the power imbalance inherently present in these relationships is arguably insurmountable. There can be no compensating for the disparity in bargaining power between an abuser and his victim,70 especially in light of the “culture of battering” as previously discussed.71 To request or expect a mediator to do so can compromise their neutrality or impartiality.72 It is difficult to maintain an unbiased attitude when engaging in power balancing in the context of this dynamic and when sus- taining vigilance against any perceived intimidation and subtle attempts to control and coerce.73 Again, one must bring to mind the “culture of battering” and acknowledge that an overlooked or un-

65 See Section II.A. 66 See Landrum, supra note 1; Fischer et al., supra note 44, at 2139–41. This problem is often addressed through pre-screening which will be discussed in further detail. 67 Although this calls to mind the “hippie, love child” that is Transformative Mediation, see Menkel-Meadow et al., supra note 18, at 261–63, that is not the intended implication. Rather, the term is used to convey the idea that divorce mediation not only requires cooperation by the parties within the process itself, but also that the parties share a common attitude about the process as a whole. 68 See Fischer et al., supra note 44, at 2157, citing Laura Nader, The ADR Explosion—The Implications of Rhetoric in Legal Reform, 8 WINDSOR Y.B. ACCESS TO JUST. 269 (1988); see also Grillo, supra note 1 (arguing that, in part, harmony is valued over justice). 69 See Barbara J. Hart, Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation, 7 MEDIATION Q. 317, 320 (1990). 70 See Pollet, supra note 20, at 43; Landrum, supra note 1, at 438–39; Fischer et al., supra note 44, at 2168. 71 See Section II.A; see also Fischer et al., supra note 44. 72 Id. 73 Id.; see also Landrum, supra note 1, at 441; Rana Fuller, How to Effectively Advocate for Battered Women When Systems Fail, 33 WM. MITCHELL L. REV. 939, 947–48 (2000) (noting that it is difficult to remain neutral when working to protect the rights of one of the parties). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 13 26-APR-19 11:42

2019] MEDIATION/COLLABORATIVE LAW 341 recognized glance can instill fear in a victim and trigger sympto- matic responses such as capitulation and withdrawal. These effects undermine the self-determination aspect of the process, as well as the fair, informed, and consensual nature of any agreement reached.74 A victim of domestic violence is unlikely to be able to articulate and advocate for her needs, interests, and desires.75 She may also be reluctant to voice her disagreement with her abuser for fear of retaliation, rendering true negotiation impossible.76 To that end, the requisite candor expected of both the victim and the abuser is unobtainable; full disclosure is absent, as is informed decision-making. Worse, the agreements reached are often imbalanced, and acceptance of their terms and the agreement itself may be due to subtle duress precipitated by the abuser.77 The process itself appears to be so tainted by the presence of domestic violence that even its goal of providing a safe and produc- tive environment for the parties to discuss their divorce is compro- mised.78 This is more than a threat to the victim herself; this is a risk to the integrity of mediation’s methods and promises. Finally, the private, confidential, and forward-looking nature of the process is conceivably a setback to the achievements of the battered women’s movement.79 These process tenets call for the abuse to be cast in the shadows80 and to remain unaddressed. For the abuser this has the effect of minimizing the domestic violence, of “blur[ring] the message of offender accountability,81 and of reaf- firming his sense of control.82 For the victim, this can equate to a denial of the violence, concealment of its illegality and immorality,

74 See Landrum, supra note 1, at 443. 75 See Rimelspach, supra note 8 (highlighting that in reality a victim is not free to choose as she has been conditioned to consider her abuser’s needs ahead of her own. Her consent is in appearance only and under duress); see also Hart, supra note 69, at 321. 76 See Pollet, supra note 20, at 43; Fischer et al., supra note 44, at 2161. 77 See Landrum, supra note 1, at 443. 78 See Krieger, supra note 22, at 246. 79 See Krieger, supra note 22, at 240–41. Krieger points out that “as a result of this movement, ‘the institutional obstacles faced by battered women in the religious, welfare, medical, mental health, educational, and civil and criminal justice systems were exposed, and the practice of systems advocacy emerged.’ One of the main goals of this new advocacy was to support battered women and to politicize and publicize domestic abuse to raise awareness and create protective legislation for victims” (internal citations omitted). 80 See Landrum, supra note 1, at 445. 81 See Rimelspach, supra note 8, at n.16, citing Anne E. Menard & Anthony J. Salius, Judi- cial Response to Family Violence: The Importance of Message, 7 MEDIATION Q. 293, 301 (1990). 82 See Krieger, supra note 22. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 14 26-APR-19 11:42

342 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 and a failure to offer this victim any opportunity for redress and to regain some of her lost power.83 While it may seem that the prospect of mediating divorcing couples in domestic violence cases is dim to the extent that adherence to the process in this context is virtually impossible, there are those that favor its use.84 They highlight that the process can be “supportive, empowering, and enlightening”85 both to the battered woman and to her batterer. They also point out that the alternative of litigation—an adversarial process by nature—would be more destructive for these couples, as it reinforces the factors that contribute to the abuse in the first place.86 Furthermore, mediation, unlike litigation, can be customized for each couple. It can provide a model for future interactions through a demonstration of respectful communication, and can address issues or emotions that a court or judge would not typically address.87 Nevertheless, those that champion the process acknowledge that some couples with a history of domestic violence are beyond the scope of mediation, and it would be unethical for a mediator to proceed or even com- mence a mediation with them.88 They also concede that for couples who do not exhibit this extreme, and for whom mediation could work, various protections for both the victim and the process need to be employed.

III. DOMESTIC VIOLENCE AND MEDIATION: RESPONSES AND THEIR SHORTCOMINGS

A. Efforts to Address Concerns

The efforts to address the problems that domestic violence presents both to the victim and the divorce mediation process fall into three general approaches: 1) pre-screening of potential partici-

83 See Krieger, supra note 22, at 248–51 (providing an extensive treatment of the concept that mediation is a setback to the plight of the victims). 84 See, e.g., Rosenberg, supra note 1; see also Knowlton & Muhlhauser, supra note 1, at 266–67. 85 See Rosenberg, supra note 1, at 468. 86 See Corcoran & Melamed, supra note 2, at 311. 87 See Rimelspach, supra note 8. 88 See Linda K. Girdner, Mediation Triage: Screening for Spouse Abuse in Divorce Media- tion, 7 MEDIATION Q. 365, 372–75 (1990) (discussing that mediation is inappropriate if the abuse is ongoing, there have been threats with or use of weapons, and/or the victim appears unable to place her needs ahead of the batterer’s); see also Erickson & McKnight, supra note 5, at 386. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 15 26-APR-19 11:42

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pants to determine which cases are appropriate for mediation, along with continued screening during the process to assess ongoing suitability; 2) employing specialized techniques, procedures, and safeguards before, during, and after the mediation sessions; and 3) educating and training mediators who desire to mediate these cases in a highly specific and functional manner.89 It is be- lieved that through these methods those cases not suitable for mediation—those that involve continued abuse, an abuser who has not relinquished his need for dominance, or a victim who maintains a submissive attitude90—will be weeded out. At the same time, those couples who can be mediated with specific ground rules, safety modifications, and skillful mediators will be identified, and appropriate action plans can be put into place.

1. Screening for Domestic Violence Pre-screening for appropriateness may involve a written ques- tionnaire sent to the parties prior to the mediation session or ad- ministered at an intake meeting;91 it may be conducted over the telephone or face-to-face, allowing for direct observation of the parties.92 If the latter approach is employed, it has been suggested that the person doing the screening be of the same gender as the party being screened93 and be someone other than the mediator who will be working with the couple.94 Regardless of the manner used, the confidentiality of the screening should never be compro- mised, as a victim is unlikely to disclose abuse in the presence of her abuser.95 Additionally, the questions asked should be comprehensive enough to elicit the many types of violence that can be present, and to account for a victim’s denial or concealment of the abuse.96 To that effect, various screening tools have been designed to assess issues of domestic violence. These include the Tolman Screening Model, the Ellis Screening Model, the Conflict Assess- ment Protocol (“CAP”), and the Domestic Violence Evaluation

89 See generally Vestal, supra note 7. 90 See Peter Salem & Ann L. Milne, Making Mediation Work in a Domestic Violence Case, 17 FAM. ADVOC. 34, 37 (1995); Guion, supra note 6, at 547. 91 See Salem & Milne, supra note 90; Rimelspach, supra note 8; Vestal, supra note 7. 92 See Salem & Milne, supra note 90; Erickson & McKnight, supra note 5, at 379–82. 93 See Salem & Milne, supra note 90. 94 See generally Alison E. Gerencser, Family Mediation: Screening For Domestic Abuse, 23 FLA. ST. U. L. REV. 43 (1995). See Rimelspach, supra note 8, at n. 47 (suggesting that mediation screening should be performed by highly trained, wholly independent screeners who have no monetary or programmatic interest in the outcome of the screening process). 95 See Salem & Milne, supra note 90. 96 Id. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 16 26-APR-19 11:42

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(“DOVE”).97 Some of these instruments, CAP and DOVE for example, appear to be complex multipart assessments that identify patterns of behavior the parties exhibit in their interactions—these patterns are considered predictors of abusive behavior.98 Partici- pants receive a score based on their answers to items in the survey, which is used to place them into various risk categories. Mediators can use these categorizations to determine if a case should be ex- cluded from mediation, if the parties require modifications of the process, or if mediation can proceed as usual.99

2. Modifications to the Mediation Process If mediation is undertaken with the consent of both parties and the mediator, the process itself can be adjusted to take different forms to promote its functions and the safety of the victim. First, safety plans can be implemented that take into account the facility and the mediation space. This can include having separate entrances and waiting areas, scheduling different arrival times for the individuals, providing escorts to and from transportation means, ensuring metal detectors are available and functional, and utilizing spacious conference rooms with sufficient unencumbered space and larger conference tables that establish a greater barrier between the victim and abuser.100 This last suggestion, however, may be useless if the victim truly cannot function independently in her abuser’s presence, if she feels her overall well-being is threatened, or if the power imbalance is too pervasive to correct. In these and other situations, alternative forms of mediation that do not involve face-to-face communication can be considered, such as private caucuses where the mediator meets with each party separately. Caucuses are often used in traditional forms of mediation when impasse occurs—one party will be asked to leave the

97 See Vestal, supra note 7; Ellis & Stuckless, supra note 9, at 658; Guion, supra note 6, at 546–47; see also Chandler supra note 1, at 336–38. These articles explore the instruments in further detail. For example, CAP has four parts: 1) the introduction; 2) questions about patterns of decision-making, conflict management, and anger expression; 3) questions about specific abusive behavior; and 4) closure to the screening sessions. Chandler discusses Pre-mediation Coun- seling (“PMC”), which is a program that provides assessment and counseling for cases of domestic violence discovered during a mediation intake. 98 See generally Girdner, supra note 88; Ellis & Stuckless, supra note 9. 99 See Salem & Milne, supra note 90 (noting that screening should not end after the initial interview, and if the parties are permitted to proceed, a mediator should continue to evaluate their appropriateness throughout the process). 100 See Guion, supra note 6, at 545; Rimelspach, supra note 8; cf. Ann W. Yellott, Mediation and Domestic Violence: A Call for Collaboration, 8 CONFLICT RESOL. Q. 39, 43 (1990) (stating that mediators cannot accept responsibility for guaranteeing safety). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 17 26-APR-19 11:42

2019] MEDIATION/COLLABORATIVE LAW 345 room and then the parties will switch, with the mediator staying present in the space the entire time.101 Another type of caucus that is used is called “shuttle mediation,” which occurs when the parties are located in different rooms during the entire process and the mediator shuttles back-and-forth between them.102 Other alternative forms that maintain separateness include conducting the entire session through telephone or video conferencing means.103 Mediators may also allow a friend, representative, special advocate, or counselor—in other words, a support person—to attend the sessions with the victim,104 or to have a peace officer present in the room.105 They may also implement strict ground rules that gov- ern topic agenda or communications between the parties.106 Dur- ing the sessions, a mediator may suggest or ensure participation in appropriate counseling or other support forums, and should have a knowledge of and connection to these community resources.107 Lastly, it is imperative that a suspension or termination plan be ready if continuing in mediation proves dangerous, or is requested by one or both parties.108

3. Mediator Training and Education While there is a lack of agreement about the qualifications, regulation, and formal certification of mediators in general,109 there seems to be a consensus regarding those that will mediate domestic violence cases. The education and training offered to these mediators must not only address the process techniques employed as responses to abuse, but must also “provide the information and skills needed so that mediators can serve as competent and [compassionate] assessors of the presence of domestic violence with knowledge of [its] . . . effects on victims.”110 Mediators for these couples must have special skills, sensitivity, and a network of

101 See Menkel-Meadow et al., supra note 18, at 292–93. 102 See, e.g., Guion, supra note 6, at 551; Salem & Milne, supra note 90, at 38; Landrum, supra note 1, at 459–60. 103 See, e.g., Guion, supra note 6; Salem & Milne, supra note 90. 104 See Landrum, supra note 1, at 460–62; Ver Steegh, supra note 1, at 200. 105 See Vestal, supra note 7. 106 See Salem & Milne, supra note 90, at 38. 107 See Rimelspach, supra note 8; see generally Yellott, supra note 100. 108 See Rimelspach, supra note 8; Ver Steegh, supra note 1, at 201 (discussing the Model Standards’ seven different situations where a mediator is called upon to terminate the mediation); see generally Allan Edward Barsky, Issues in the Termination of Mediation Due to Abuse, 13 MEDIATION Q. 1, 19–35 (1995). 109 See Ver Steegh, supra note 1, at 189. 110 See Maxwell, supra note 8, at 345. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 18 26-APR-19 11:42

346 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 resources.111 They must also be both proficient and experienced mediators and have some expertise in domestic violence issues.112 They “need both the skills of a legal advocate and those of a therapist.”113 In addition to these multi-disciplinary requirements, some have suggested that training include an experiential requirement of co-mediation or a lengthy period of supervised sessions by a senior, experienced mediator.114 The rationale for these requirements is the demanding nature of mediating domestic violence cases, and the necessity that mediators who choose to accept the responsibility of doing so must be of high caliber.

B. The Shortcomings of These Measures

The obligation to preliminarily and continually screen couples for suitability, the adaptations that can be made to the traditional mediation process, and the education and training that can be undertaken by mediators make meaningful steps towards addressing the obstacles that domestic violence places in front of the process and the mediator. However, they each have shortcomings.

1. Screening Shortcomings

The variety of screening instruments makes it difficult to choose which is the best to utilize in a given situation,115 and a poor choice could have consequences in that some of the tools are inadequate to test for all forms and types of abuse, or to assess if elements of the “culture of battering” are present.116 Also, few screening mechanisms inquire about the timing of the violence, proceeding on the flawed assumption that the abuse is in the past

111 See Guion, supra note 6, at 550; Vestal, supra note 7; Yellott, supra note 100, at 46 (placing this specialized training at a paramount level of importance). 112 Id. 113 See Landrum, supra note 1, at 455, citing Lisa G. Lerman, Mediation of Wife Abuse Cases: The Adverse Impact of Informal Dispute Resolution on Women, 7 HARV. WOMEN’S L.J. 57, 110–11 (1984). 114 See Ver Steegh, supra note 1, at 190. 115 See Section III.A.1. 116 See Section II.A; see generally Fischer et al., supra note 44, at 2155, 2169 (criticizing Chan- dler’s program for use of a single question and Girdner’s CAP for contextualizing violence); Ellis & Stuckless, supra note 9, at 659 (attributing the creation of DOVE to the problems in prior screening methods employed, such as Girdner’s and Erickson and McKnight’s). See, e.g., Erick- son & McKnight, supra note 5. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 19 26-APR-19 11:42

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and no longer an issue for the divorcing couple.117 In other words, the tools presume that the violence—at least the physical manifes- tation thereof—has ceased, and they fail to test for the continued presence of other forms of domestic violence such as coercion or intimidation. It is important to note that these screening protocols largely take the form of questionnaires where victims are asked to respond freely and honestly to the questions posed or statements made. This reliance on a victim’s candor and openness is misplaced and is questionable in the context of the lifestyle that includes domestic violence.118 Imposing a subjective evaluation onto the screener renders their judgment an uncertain indictor of the presence of abusive behavior.119 Ultimately, “screening is more of an art than a science,”120 making accuracy problematic.

2. Process Modification Inadequacies Implementing any one or a number of the modifications or safeguards during a mediation session may effectively retard the process to the extent that it loses some of its hallmarks and benefits.121 One of divorce mediation’s major benefits is that it encour- ages parties to work together to resolve common issues, and in doing so to learn better communication and cooperation skills that will inform their post-divorce relationship.122 If it is necessary to employ shuttle mediation for example, this benefit does not have the opportunity to come about, as shuttle mediation is designed to keep the parties separate. The parties therefore rely on the mediator as conversation facilitator and intermediary as opposed to learning how to effectively communicate with each other. Even more so, these alternative forms of interaction and precautions do not serve mediation’s goals of promoting a victim’s self-determination and empowerment;123 they neither facilitate these goals, nor do they confront the issues of domestic violence directly. Rather,

117 See Fischer et al., supra note 44, at 2156; see also Krieger, supra note 22, at 247 (noting that the period between separation and divorce can be the most dangerous time for a victim). 118 See Fischer et al., supra note 44, at 2139–41. 119 See Ver Steegh, supra note 1, at 194, citing Katherine M. Reihling, Protecting Victims of Domestic Violence and Their Children After Divorce: The American Law Institute Model, 37 FAM. & CONCILIATION CTS. REV. 393 (1999). 120 Id. 121 See Dillon, supra note 11. 122 See Krieger, supra note 22, at 244. 123 See Fischer et al., supra note 44, at 2163 (arguing that even private caucuses will not assist victims who are afraid of the consequences of speaking their needs); cf. Ver Steegh, supra note 1, at 183 (stating the women often find mediation empowering, reporting that their participation \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 20 26-APR-19 11:42

348 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 they mediate around them, relegating the abusive behavior to the background, and thereby forfeiting another benefit of this dispute resolution process that is often lacking in litigation—the prospect of giving attention to and managing the emotional aspects of a conflict.124

3. Education and Training Inadequacies

It is difficult to conceive that enhanced education and training for mediators who will mediate these cases is in any way ineffective or lacking, but there remain some issues. There is an absence of legislative mandates for such programs, making their structure, im- plementation, and requirement inconsistent;125 it is therefore possible that mediators without particular knowledge or skills will be mediating divorcing couples who have an abusive past—potentially violating the principal to “do no harm.”126 Additionally, there will be some mediators who, even with these measures, may not be able to gain the skills necessary to spot the myriad intimations of domestic violence and to handle its effects, both to the victim and on the process.127 Finally, asking them to do so potentially compromises their role as mediators. It requires them to be more proactive128 and entrusts them with responsibilities that are beyond their duties with respect to the mediation.129 This is different from the threat to the process;130 this is pressure and expectation borne by the mediator that should be beyond his or her obligations.

enhances their ability to stand up and assume responsibility for themselves, solve problems, and express their views). 124 See Dillon, supra note 11; see generally Grillo, supra note 1; cf. Corcoran & Melamed, supra note 2, at 311 (indicating that stopping the abuse can be addressed in mediation); Erickson & McKnight, supra note 5, at 378 (advocating for mediation to be another tool designed to break the cycle of abuse); Rosenberg, supra note 1; Knowlton & Muhlhauser, supra note 1. 125 See Pollet, supra note 20, at 44; Landrum, supra note 1, at 454–56; Knowlton & Muhlhauser, supra note 1, at 264. 126 See Vestal, supra note 7; Cameron, supra note 13, at 16 (declaring this sentiment as a fundamental premise). 127 See Krieger, supra note 22, at 256–57; Fischer et al., supra note 44, at 2167–68; Knowlton & Muhlhauser, supra note 1, at 267. 128 See Rimelspach, supra note 8. 129 See Erickson & McKnight, supra note 5, at 378–79 (imposing an affirmative duty on the mediator to uncover spouse abuse); see also Corcoran & Melamed, supra note 2, at 313. 130 See supra Section II.C.2. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 21 26-APR-19 11:42

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IV. MED/COLLAB: A NEW ADR COMBINATION IN RESPONSE TO DOMESTIC VIOLENCE

Keeping in mind the benefits of divorce mediation as well as its shortcomings, and reflecting on the negative option of matrimonial litigation,131 a proposed new combination of Mediation/Collab- orative Law (“Med/Collab”) is offered. A call for collaboration in the context of domestic violence is not novel. It has been dealt with by drawing on community resources, such as domestic violence treatment agencies, shelters, advocates, law enforcement, and professionals and experts in the field, to address the issues in a global fashion and to design effective services for these cases.132 Likewise, in divorce it is not uncommon to seek assistance and rely on outside specialists and consultants, such as forensic accountants, appraisers, or family therapists.133 While these efforts should be promoted as a comprehensive and admirable approach to the divorce and domestic violence problem, it is not the only collaboration championed here. What is proposed is a combination of mediation and the practice of collaborative law—Med/Collab—as a way of addressing domestic violence in divorcing couples.134 As the discussion thus far has focused on mediation, a look at the practice of collaborative law follows.

A. Collaborative Law Practice: An Overview

Collaborative Law practice seems to have been born out of an overall dissatisfaction and frustration with the court system and the adversarial process, especially in handling of matters involving the family.135 As its name suggests, it promotes collaboration among the participants in the process, and requires the utmost commitment to working together honestly and with integrity to resolve

131 See Dillon, supra note 11; see also Section II.C.2. 132 See generally Yellott, supra note 100 (contextualizing the collaboration as part of a method to address the abuse and its treatment, and not wholly as a means to address divorcing couples); see also Peter Salem & Billie Lee Dunford-Jackson, Beyond Politics and Positions: A Call for Collaboration Between Family Court and Domestic Violence Professionals, 46 FAM. CT. REV. 437 (2008); Landrum, supra note 1, at 458. 133 See, e.g., Cameron, supra note 13, at 9–10. 134 It is conceivable that this new combination could be resourceful in other types of matters beyond the family law context. 135 See Cameron, supra note 13, at 1–6. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 22 26-APR-19 11:42

350 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 common issues.136 To that end it has as its defining feature an agreement between attorneys to help parties resolve their dispute outside of court, and—should the collaborative process fail— neither of the attorneys (nor any third party participants) continues with the clients.137 This is often referred to as a “disqualification agreement.” It is meant to immunize the force behind the litiga- tor’s dilemma of resorting to court intervention and threatening more formal procedures and expensive alternatives, and to remove any use of strategic feints from the process.138 This agreement is part of a larger participation agreement that the attorneys and parties enter into, in which the participants agree to work together in a respectful manner, to disclose all information relevant to the issues, and to avoid common litigation tactics.139 Similar to the other ADR processes, collaborative law focuses on serving the parties’ interests, and the attorneys and other professionals involved are as committed to resolution of the issues as are the parties.140 Collaborative law is an interdisciplinary practice that incorpo- rates professionals other than attorneys (such as financial experts, child specialists, divorce coaches, therapists, psychologists, and other mental health professionals) into the process.141 As to the method of including those individuals, three different models have materialized: 1) the team approach; 2) the Lego approach; and 3) lawyers working with other professionals (“LWOP”).142 The team model always commences with a team minimally comprised of two divorce coaches and two attorneys; other specialists are recruited as needed, drawing heavily from family systems therapy.143 The second approach—Lego—builds upon what the couple requires, adding various professionals and putting together a team based on the clients’ needs and choices; the team is uniquely created for each couple.144 (Some groups subscribing to this model include

136 Id. at 8; see also Drew, supra note 13, at 29–31. 137 See Cameron, supra note 13, at 6. 138 Id. at 17–18 (discussing the gunslinger’s dilemma, i.e. if I put my gun down will I be killed, or will my rival put his down too, as a way to explain the rational for disqualification. Cameron states that “the agreement is the contractual equivalent of a gun-free town.” She also explains that without the agreement, the parties are engaging in a cooperative process that is not collaboration, since the potential to go to court remains looming). 139 Id. at 6–7. 140 Id. 141 Id. at 12. 142 Id. at 10–16. 143 Id. at 12. 144 Id. at 13–14. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 23 26-APR-19 11:42

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mediators as part of the team).145 The third and final model— LWOP—is not favored, as it retains characteristics of cooperative, as opposed to collaborative, divorce.146 The attorneys here continue to control the process and refer the parties to work with outside professionals.147 It seems that the synergistic approach to collaborative practice gets diluted in this model. Returning to the preferred approach, as Lego builds its team from the clients’ perspective, the move that groups employing this method have made in enlisting mediators as team members will be built upon.

B. Med/Collab: The Process and Its Benefits

A process of Med/Collab would incorporate the structure, hallmarks, and benefits of both mediation and collaborative law practice. It follows the Lego model of involving other professionals with the collaborative team, with one of those professionals being a neutral mediator.148 This player would maintain their role as an unbiased negotiation facilitator,149 while the other players adopt some of the other positions required by the presence of domestic violence, such as advocate or therapist. It also embraces the suggestion of introducing an attorney representative for the victim into the mediation process as a safeguard. Conceptually, the hybrid involves introducing collaborative-minded attorneys into the divorce mediation, or vice versa, inviting a neutral mediator into collaborative sessions. Med/Collab as a new ADR combination could address the shortcomings of both mediation (see above) and collaborative practice in handling these types of cases. Collaborative law shares many of the same challenges dealing with domestic violence as me-

145 Id. (noting that Atlanta, Georgia has developed this approach). 146 Id. at 15–18. Cooperative divorce is defined by Nancy J. Cameron as the process of negoti- ating agreements in four-way meetings with the clients and their attorneys present, but, as opposed to collaborative divorce, the essential disqualification element is missing. She further highlights that LWOP does not require the development of new skills or protocols, it maintains the myth that divorce is chiefly a legal event, it minimizes the importance of the team approach, and it lacks the holistic understanding of the divorce process in relation to the family and as a whole. 147 Id. 148 Other professionals, especially those apropos to the issue of domestic violence could and should be added in this circumstance from the beginning of the process, or on an “as needed” basis. 149 See, e.g., Ver Steegh, supra note 1, at 172, citing Trina Grillo, Respecting the Struggle: Following the Parties’ Lead, 13 MEDIATION Q. 279, 279 (1996). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 24 26-APR-19 11:42

352 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 diation does, both for the victim and the process alike.150 Briefly: collaborative law practice struggles with identifying the presence of domestic violence given its definitional complexity and the diver- sity in victims’ responses to abuse;151 collaborative practitioners are even less regulated than mediators, risking an untrained and inex- perienced attorney counseling those in abusive relationships;152 honesty, transparency, and full disclosure from the clients—all mandatory in the practice of collaborative law—are problematic and can be harmful to the victim;153 and, finally, another crucial aspect of the practice—the four-way or team meetings—pose similar dangers as in traditional mediation sessions which, in the process of collaborative law, cannot be altered.154 Consequently, collaborative law has been deemed incompatible with abusive relationships.155 In opposing this argument, collaborative law propo- nents readily point out that the process has many client protections inherent in its practice, such as representation by counsel.156 However, this argument ignores mediation that allows attorneys to represent the parties, which raises the question: How is Med/Collab different from represented mediation?

1. Represented Mediation versus Med/Collab: An Attorney’s Role

Underlying this discussion is the premise that “lawyers nega- tively affect mediation”157 and their attendance at sessions, especially those concerning divorce, is generally discouraged. A basis for this belief is “that adversarial attorney interaction in divorce mediation threatens to compromise the viability of the process.”158 Yet, as outlined above, in divorce mediation with couples who have

150 See generally Drew, supra note 13. 151 Id. at 31–33. 152 Id. at 34–35. 153 Id. at 49–50. 154 Id. at 50–51. 155 Id. at 55. 156 Id. at 39. 157 Craig A. McEwen, Nancy H. Rogers & Richard J. Maiman, Bring in the Lawyers: Chal- lenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317, 1354 (1995) [hereinafter McEwen et al.]; see also Rosenberg, supra note 1, at 500 (opining that an attorney’s advocacy role may promote reluctance to explore more helpful and creative solutions). 158 See McEwen et al., supra note 157, at 1317, 1354 (quoting Professor Carbonneau (internal citations omitted)). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 25 26-APR-19 11:42

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a history of domestic violence an attorney’s presence and intervention may not only be helpful, but necessary.159 Above all, attorneys who represent clients in mediation are and remain advocates for their clients; put another way, their client’s interests are superior to those of the process. They mediate in the shadow of potential litigation and must prepare their client and prepare for the process accordingly.160 In fact, their advocacy begins even before the session in selecting the mediator, and perhaps preparing pre-mediation submissions or engaging in a pre-mediation conference.161 During the session, the support for their client continues as they present opening statements and participate in both joint discussions and caucuses.162 They can provide a check on unfairness and protect against unequal bargaining power, as well as the acceptance of an unfair settlement.163 Attorneys are encouraged to use the presence of the mediator to advance their client’s interests164 while also avoiding the pitfalls of mediation that can compromise their advocacy skills,165 such as insisting on formal discovery or demanding strict adherence to the Domestic Relations Law.166 In summary, the adversarial posture most attorneys adopt is not wholly conducive to the mediation process, and without an attitude or perspective shift167 there is a danger that their presence in the process will be counterproductive. That new orientation necessary for a constructive process is arguably provided within the ideology of collaborative law practice, in that it casts light on the shadows and dissipates the cloud of litigation. The participation and disqualification agreements remove the threat and establish new ground rules for attorney inter-

159 See Penelope Eileen Bryan, Reclaiming Professionalism: The Lawyer’s Role in Divorce Mediation, 28 FAM. L.Q. 177, 192 (1994). However, in a completely contradictory fashion, Bryan emphatically dissuades attorneys from representing clients who present a high-risk profile. In other words, representing mediation clients who have experienced physical or emotional abuse in the marriage should be avoided. Id. at 207. 160 Much of the preparation undertaken sounds familiar to the preparation involved in liti- gated matters. 161 See Menkel-Meadow et al., supra note 18, at 296–302. 162 Id. 163 See McEwen et al., supra note 157, at 1360–61. 164 See Menkel-Meadow et al., supra note 18, at 296 (citing Professor Abramson (internal citations omitted)). 165 See Bryan, supra note 159, at 210–16. Bryan indicates those pitfalls as: “belief in a ‘better way’ (rhetoric), efficiency rhetoric, lawyer self-interest, relationship rhetoric, and diminished professional accountability.” 166 Id. at 210–16. 167 See Menkel-Meadow et al., supra note 18, at 296–98 (offering an excerpt of Leonard L. Riskin’s article, Mediation and Lawyers, 43 OHIO ST. L.J. 29, 43–45 (1982)). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 26 26-APR-19 11:42

354 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 actions with each other and approaches with their respective clients towards resolution.168 Attorneys in this process are likened to the “sand in an egg timer, with process one-half of the [timer] and outcome the other.”169 They flow between process and outcome with the latter informing the former170—not relinquishing their advocacy role, but rather balancing it with their commitment to the process. Ultimately, however, the defining feature of collaborative law dictates that the process must win if the clients cannot resolve their issues. In other words, for a collaborative attorney the practice is superior to their client’s interests. It is this distinction that influences an attorney’s role in the collaborative process. That role takes on a number of functions, including: 1) working individually with a client; 2) building a good relationship with the other advocate; 3) facilitating the process; 4) exercising self- awareness to ensure compliance with process goals; and 5) offering process-specific skills.171 The first two share qualities with the traditional advocacy position and include educating the client, as- sisting in articulating and prioritizing his or her needs, and giving legal advice.172 The remaining functions mimic those of a traditional mediator, and include managing the meetings, checking adversarial, biased, or controlling behavior, and employing techniques such as empathetic listening, reframing, and moving conversations from debate to dialogue.173 Collaborative law seeks, in part, to meld these seemingly disparate roles.174 The role of attorneys in represented mediation versus collaborative law practice is an answer as to how these processes are different. It also demonstrates the deficiencies of each process as a separate entity. Within mediation a lawyer may become a dysfunc- tional element in the discussions, thereby hindering the entire process.175 The presence of domestic violence with its greater demand for client/victim protection could potentially exacerbate this effect, by imposing upon the lawyer a need to be hyper-advocate and guardian. With the attorney’s intense focus on this role the oppor-

168 See Cameron, supra note 13, at 18; see also Section IV.A. 169 Id. at 126. 170 Id. 171 Id. at 126–67. See also id. at 127–144, for a detailed coverage of each of those functions as well as their sub-responsibilities. 172 Id. 173 Id. 174 The controversy as to the advisability of doing so is left for another piece. 175 See McEwen et al., supra note 157, at 1355. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 27 26-APR-19 11:42

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tunity to engage in meaningful mediation is diminished.176 Simi- larly, the dual roles of advocate and mediator that an attorney embraces and balances in collaborative practice create a source of possible conflict and should be of concern to its participants. These roles are completely incongruous by definition; an advocate chooses a side and zealously argues his or her position, while a mediator must not favor either party, remaining neutral and impar- tial.177 In reflecting on Med/Collab in this context, it appears that an unintended advantage of the combination178 is to relieve the pressure on collaborative attorneys to simultaneously function in these two positions. The effective benefit is to eliminate that potential for conflict.

2. Med/Collab: Benefits and Advantages

In order to present the benefits and advantages of Med/Collab it is necessary to briefly recall the problems that domestic violence poses to mediation and the deficiencies of the efforts to alleviate those problems. Briefly the problems include: 1) defining and addressing the domestic violence; 2) protecting a victim’s safety and confirming her ability to fully and competently participate; 3) managing power imbalances; 4) maintaining mediator neutrality; and 5) ensuring the fairness of agreements.179 The inadequacies of the efforts are that: 1) screening is subjective, inadequate, complicated, and imprecise; 2) process adjustments result in lost benefits and hallmarks; and 3) education and training requirements are inconsistent and expect much from a mediator who may continue to lack the ability to mediate these types of cases.180 Med/Collab can respond to and resolve these issues, thus providing benefits and advantages to all parties involved, as well as to the process. This accomplishment is demonstrated from different perspectives. From the mediator’s perspective there is less of a need to secure (or attempt to secure) the victim’s safety and well-being, as well as her competency to engage in the process, since she is represented by counsel. She has a voice, a support person, and an escort

176 See Section IV.B.1. 177 See Menkel-Meadow et al., supra note 18, at 270. 178 Unintended in that this piece was mainly written from the perspective of improving the mediation process when domestic violence is an issue. 179 See Sections II.C.1 and II.C.2. 180 See Section III.B.1–3. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 28 26-APR-19 11:42

356 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 in the event she needs one.181 Likewise, the demanding need to balance power between the victim and her abuser, an arguably fu- tile task,182 is alleviated by the presence of an attorney. The attorney can also perform the function of checking and ensuring the fairness of agreements. Overall, the mediator is left to fulfill his or her role as a facilitator, while adhering to one of mediation’s prin- ciple attributes—neutrality and impartiality.183 Moreover, the mediator is free to perform his or her duty as protector and steward of the Med/Collab process. For the collaborative lawyer the most effective and beneficial result is their ability to remain in character, and not to have to perform the dual and potentially inconsistent function of advocate/ mediator.184 They are unencumbered from the burden of a neutral and can advocate for their client. Simultaneously, their orientation in the collaborative process neutralizes any dangers that can result from a traditional advocacy/adversarial perspective, while guaranteeing that the process is honored.185 Most meaningfully, the victim can be made to feel comforta- ble, secure, listened to, and reflected—in short, empowered.186 She can find validation and have her needs met. Additionally, given the presence of other appropriate professionals on the team, and the holistic approach of the hybrid process, there may be an opportunity to bring the abuse into the light187 and find closure.188 Med/ Collab offers the chance to serve these efforts by drafting therapists or psychologists onto the team. These professionals can work with the victim and the abuser separately or together to address the abusive behavior, to foster abuser accountability189 and monitor treatment and change, and to heal the victim—restoring

181 See Vestal, supra note 7. It is contemplated that in cases with domestic violence the Med/ Collab team will always elect to include other pertinent professionals, such as abuse counselors or therapists. 182 See Fisher, supra note 44, at 2168; see also Landrum, supra note 1, at 438–39. 183 See Menkel-Meadow et al., supra note 18, at 270. The authors of this text liken mediators to Tao masters who lead in subtle ways, so people believe they have achieved results of their own. 184 See Section IV.B.1. 185 See Menkel-Meadow et al., supra note 18, at 270. 186 See Rosenberg, supra note 1, at 468; see also Ver Steegh, supra note 1, at 183; cf. Krieger, supra note 22, at 244. 187 See Salem & Milne, supra note 90, at 36; Landrum, supra note 1, at 463; Ver Steegh, supra note 1, at 181–82; Erickson & McKnight, supra note 5, at 378. 188 See generally Yellott, supra note 100, at 39, 43. 189 See Drew, supra note 13, at 37 (stating that “accountability is the essential goal of success- ful batterer intervention programs” (internal citations omitted)). In her article, Drew concludes that collaborative law is not compatible with abusive relationships. Id. at 55; see also id. at 50–51. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 29 26-APR-19 11:42

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her self-worth and enabling her to move forward independently, courageously, and with strength. Mental health professionals can also neutralize the future orientation of mediators that can be harmful to the victim190 and the collaborative lawyer’s risk of en- couraging amicable resolution in all circumstances, rather than disqualify.191 Having these players—a mediator, collaborative lawyers, and other appropriate professionals—all involved together in the process, and even present in the meeting room, allows them to stay informed and knowledgeable about the case, to generate options for resolution that to one player alone may not be evident, and to remain in their respective roles drawing on their strengths and balancing their colleagues’ weaknesses. As a group they are able to see the matter of divorce and domestic violence from all sides— legal, emotional, financial, and psychological—and address these various perspectives through Med/Collab’s integrated approach. As to the process, creating and employing this hybrid virtually removes the necessity of modifying divorce mediation sessions in such a way that dilutes the process with, for example, shuttle mediation.192 Shuttle mediation is a method employed to serve a victim who does not feel safe or capable in the presence of her abuser.193 As proposed above, having the various players—the mediator, collaborative lawyers, and therapists or psychologists—present in the room with the victim and the abuser could ease tensions, mitigate the victim’s fear, and shield her from the potential harm of non- violent abuse,194 and even more so, empower her.195 In that way, the parties can be encouraged to work together to resolve issues and can be taught better communication skills. Again, the team approach with the mediator/referee, the attorney/coaches,196 and players, who may look like a counselor,

However, she wholly fails to address the opportunity to introduce mental health professionals into the process. 190 See Section II.C.2; see Krieger, supra note 22, at 240–41; see also Landrum, supra note 1, at 445. 191 See Drew, supra note 13, at 46–49; see also Menkel-Meadow et al., supra note 18, at 296. 192 See Section III.A.2. 193 Id. 194 See Section II.A and II.B. It is presumed that the abuser would not be so bold as to attempt physical violence in the presence of the third-party participants and neutrals. However, if he did, the victim is again protected by those persons’ presence and likely intervention. 195 See Rosenberg, supra note 1, at 468; see also Ver Steegh, supra note 1, at 183; cf. Krieger, supra note 22, at 244. 196 Not to be confused with the role of divorce coach often found in the collaborative process. See Cameron, supra note 13, at 189–92. \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 30 26-APR-19 11:42

358 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 20:329 therapist, or psychologist, regains the benefit of focusing on and legitimizing the emotional facets of the conflict. While screening would still be encouraged, this hybrid works to reduce the importance of its findings and to reject the questionable categorization of victims as wholly unsuitable for either process separately. It could open up a forum that the processes of mediation or collaborative law alone may have denied those victims. The ambitious and oner- ous education and training requirements suggested for mediators (and presumably collaborative lawyers handling domestic violence cases) are similar to screening; while they are favored in a less ar- duous and exacting form, the presence of the other professionals mitigates its need. All of the members of the Med/Collab team can each concentrate on their own task and specialty, thereby support- ing the other members while serving the parties and respecting and promoting the process.

V. CONCLUSION

It is not suggested that divorce mediation or collaborative law practice be eliminated as options for couples with a history of domestic violence, or that they be precluded from engaging in those processes. A victim’s right to choose mediation, collaborative law, or any other ADR method should not be infringed upon by virtue of her circumstances. A moderate approach is proposed, as it is clear from voluminous research that the mediation process can have definite benefits to these couples and can be tailored to meet their needs and interests—an overall advantage and a goal of any ADR discipline. It is also evident that divorce mediation and the practice of collaborative law are vastly preferable to the alternative that is matrimonial litigation, and that battered women should not, where possible, be further victimized by the court system. Should the victim and her abuser consent to participate, the decision from the perspective of the mediator as to whether to mediate these couples depends on their own comfort level, the type and severity of the violence involved, and the safeguards that can be established both to ensure the victim’s safety and to protect the integrity of the process. The decision to engage in the collaborative law practice is similarly informed. Nevertheless, both processes have deficiencies and face obstacles in the presence of domestic violence. Consequently, what is proposed is that a hybrid process of Me- diation/Collaborative Law—Med/Collab—be afforded a place on \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 31 26-APR-19 11:42

2019] MEDIATION/COLLABORATIVE LAW 359 the dispute resolution continuum and offered as another option of “fitting the forum to the fuss”197 of couples with a domestic violence issue. This hybrid approach has benefits beyond that of either process separately and addresses the issues domestic violence presents to the processes, as well as to the mediator, collaborative lawyers, and participants. Additionally, it alleviates problems not cured by the efforts undertaken to ameliorate these issues in divorce mediation. Conceptually, ADR is a field that makes the interests of the parties paramount. Med/Collab could be another process within that discipline that precisely caters to those needs for divorcing couples with a history of domestic violence.

197 To borrow a phrase from Frank E.A. Sander and Stephen P. Goldberg. See Frank E.A. Sander & Stephen P. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10 NEGOT. J. 49 (1984). \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 32 26-APR-19 11:42

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APPENDIX

Power and Control Wheel \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 33 26-APR-19 11:42

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Walker’s Cycle of Violence \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 34 26-APR-19 11:42