For many Marylanders, the emotional and legal complexities of family law disputes are exacerbated by domestic violence. In some cases, parties in cases involving intimate partner violence will attempt to resolve their conflicts via mediation rather than litigation, but mediation might harm rather than help domestic violence victims.
During the Family Law University conducted as part of the MSBA’s 2022 Legal Excellence Week, Luann Edwards, Esq. and Deena Hausner, Esq., attorneys from House of Ruth, discussed the risks of engaging in alternative dispute resolution in family law matters involving domestic violence during the Intimate Partner Violence Mediation program. House of Ruth is Maryland’s largest provider of services to victims of domestic violence and their families, and Edwards and Hausner regularly represent clients in family law cases.
Hausner explained that mediation is fundamentally an interest-based negotiation process. Mediators can help to uncover shared interests between parties, especially as it concerns the welfare of the parties and their children, which can form the basis of a settlement agreement. There are many benefits of mediation: it can help reduce and avoid conflict adversity, mediated settlements are often more constructive than court-imposed arrangements, it allows for the parties to have greater input in the outcome of their case, it is discrete, and can help reduce litigation costs. Hausner noted that there are key assumptions that underlie the mediation process and are essential to a successful mediation. Specifically, it is presumed that the mediator is neutral and adequately trained, and that the parties have equal bargaining power.
In cases involving intimate partner violence, though, equal bargaining power is typically absent. Mediation also increases the risk of causing trauma and safety concerns for victims of intimate partner violence. Victims are more likely to make unfavorable agreements in exchange for their safety and a quick resolution, which may ultimately lead to additional litigation.
Edwards elaborated on the lack of equal bargaining power in family law cases involving intimate partner violence, noting that such violence is not limited to physical abuse but often includes emotional, mental, and financial abuse as well. She defined domestic violence as a pattern of coercively controlling behavior that one person uses to gain or maintain power and control over their partner.
Victims of intimate partner violence will often capitulate to the demands of their abuser, Hausner explained, in exchange for the illusion of their safety. They typically engage in such self-preservation behaviors not only in their daily lives but also in family law mediation. Abusers will often use the litigation process to continue to abuse and control their victims as well.
Edwards commented that the laws and measures currently in place for the protection of intimate partner violence victims are relatively new; such violence used to be treated as a private matter, and abusers faced little, if any, repercussions for their actions. Mediation in cases involving intimate partner violence essentially re-privatizes the issue and leaves victims without any record or grounds for appeal, and the mediator has no concerns for setting or following precedent, which often negatively impacts the victim. Additionally, the initial cost-saving benefits of mediation are often greatly outweighed by the costs of having to return to re-litigate issues.
Mediator neutrality is often an issue in intimate partner violence mediation as well, Hausner stated, as if the mediator manages the power imbalances, they will no longer remain truly neutral, but if they do not, they may be tacitly supporting the abuse dynamic and contributing to the victim getting a bad agreement.
Edwards hopes that recent changes in Maryland law will provide greater protection for victims of intimate partner violence. Currently, Maryland Rule 9-205 imposes duty on the court to order mediation in custody/visitation cases in which mediation is appropriate and likely to be beneficial, but prohibits mediation upon a good faith representation of intimate partner violence or child abuse as defined in Md. Code Ann., Family Law § 4-501. Effective January 1, 2023, the rule will be modified to include provisions regarding coercive control. Specifically, the rule will provide: If a party of a child represents to the court in good faith that there is a genuine issue of abuse of the party or child or coercive control of a party and that, as a result, mediation would be inappropriate, the court may not order mediation. Abuse has the meaning used in Fam. Law § 4-501. Coercive control means a pattern of emotional or psychological manipulation, maltreatment, threat of force, or intimidation used to compel an individual to act, or refrain from acting, against the individual’s will.
Hausner advised family law practitioners considering engaging in mediation to screen their clients for intimate partner violence. Clients may not always be forthcoming, and attorneys may need to ask about physical abuse, assess other power and control dynamics, like financial control, isolation, and intimidation, and talk about what happens when the parties disagree to gain an accurate view of whether the client is a victim of intimate partner violence.
Intimate Partner Violence Mediation and many of the other programs offered during Legal Excellence Week will be available on-demand in the MSBA’s CLE catalog. All Legal Excellence Week weekly pass holders can access all of the programs offered at Legal Excellence Week on-demand for 90 days after the event!