\\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 1 26-APR-19 11:42 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 vio- lence 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 media- tion 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). 329 \\jciprod01\productn\C\CAC\20-2\CAC203.txt unknown Seq: 2 26-APR-19 11:42 330 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 media- tion process itself.4 There is also a moderate view that mediation is sometimes ap- propriate, but the determination to mediate when domestic vio- lence is present depends upon the consideration of many factors. These factors include the couple themselves, their current living sit- uation, the type and severity of the domestic violence, and the me- diator 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 media- tion 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 rela- tionships 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 2019] MEDIATION/COLLABORATIVE LAW 331 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 deter- mine 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 dia- logue, 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 per- form 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 de- fining 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 vis- ited 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 agree- ment, 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 de- tail below).