October 2020 Tips by Fran: Domestic Violence in Mediations

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

***October is National Domestic Violence Awareness Month (#DomesticViolenceAwareness). If you are a victim of domestic violence, please call The National Domestic Violence hotline now.***

The Major Problem of Domestic Violence in Mediations

In July 2020, I gave a Zoom talk to the Texas Association of Mediators on mediation and domestic violence (if you are a member of TAM, our monthly Zoom talks are included in your membership www.txmediator.org). I’m passionate about this topic because if not handled correctly, mediators can fail to help protect abuse victims when those victims show up at mediation sessions with their abusers.

First the numbers. Although there has been progress in acknowledging domestic violence exists, an average of 20 people are physically abused by intimate partners every minute. This equates to more than 10 million abuse victims annually. 1 in 3 women and 1 in 4 men have been physically abused by an intimate partner, and 1 in 5 women and 1 in 7 men have been severely physically abused by an intimate partner.  

I never set out to handle domestic violence mediations. In my early mediation days I sometimes stumbled into mediations involving violence when a party admitted that it occurred. Or, I discovered the violence by noticing an abused person was showing signs of physical or emotional trauma. Oftentimes, parties or their attorneys never told me there was a protective order in place, leaving me to discover in the middle of a mediation that special precautions were necessary to ensure the safety of all participants. So I learned early on to ask about domestic violence and protective orders when I scheduled mediations.

I recognize today that many family law mediations begin with a joint session. But since I had several mediations where there was a protective order in place and no one warned me, I started putting the parties in separate rooms upon their arrival. I then asked each party if he or she felt comfortable to be in the same room with the other party. I cannot tell you how many times both men and women have expressed fear of being in the presence of the other party.

Address the Issue Right Away

If an attorney tells me of possible domestic violence, or I learn of it myself, I ask for permission to call their client to discuss their fears/concerns about appearing at mediation. I ask what I can do to make them feel safe. I usually let parties know they can take time to think about what they need and to call me back within 48 hours with their requests. By addressing their safety concerns up front, I believe I build credibility and trust before the mediation begins.

For example, a wife’s attorney warned me that her client was terrified of her professional boxer husband. I asked the attorney if I could call the wife and discuss how to make her feel safe at the mediation. The wife and I came up with several ideas: borrow a friend’s vehicle, wear a big floppy hat so that husband would not recognize her, and wait in her vehicle across the street so that she could observe husband arrive first to my office. After her husband was at my office, the wife would call me so I could watch her walk to my office. In this specific case, I made arrangements to use additional mediation space in a nearby office so that there was no way for the parties to ever see each other. At the end of the mediation session, I had her leave 15 minutes before him to help protect her safety. By addressing her concerns, this party was able to relax and feel “heard” at our mediation. We were able to resolve all issues in 2 sessions by shuttling between two offices. The entire time, the husband had no idea where his wife was physically located. I will note that the husband denied ever hitting his wife. But whether he did or not was irrelevant. The wife had expressed fear to me, and my addressing her concerns gained me credibility in her eyes, which helped facilitate an effective mediation.

Believe it or not, people don’t know if they are really in an abusive relationship because they’re used to their partner calling them crazy or making them feel like all the problems are their fault. For example, as an attorney, I once represented a successful woman in her divorce. My gut told me she was a victim of domestic violence. She denied it repeatedly. Toward the end of her case, when she felt comfortable, she admitted to me that her husband had used a door and other objects to hit her, but that since he never physically “touched” her, she did not consider it domestic violence. She was so embarrassed that she compartmentalized the abuse.

A Persistent Problem

Domestic violence is prevalent in every community, and it affects all people regardless of age, socio-economic status, sexual orientation, gender, race, ethnicity, or nationality.  For example, I once was at a cocktail party in The Woodlands, Texas, a community with higher than average household incomes. A man learned that I was a family law attorney and somehow the subject of domestic violence came up. He said that there was no domestic violence in the Woodlands. I replied that unfortunately there was domestic violence in The Woodlands, but that the women could afford better make-up to hide the marks. He ended our conversation very quickly.

Men can be the victim of domestic violence too. For example, I once did a divorce mediation that successfully settled. At the end of our session, both attorneys and the wife left. The husband stayed behind and if he could remain with me for a while. He admitted that he was terrified of his wife and that she was sitting in her vehicle outside. He was afraid that she would either shoot him or run him over. I checked, yep, she was in her vehicle parked in a way that she could easily run him over before he reached his vehicle. She did not leave for over 45 minutes. When she arrived home, their son called his father and told him it was safe for him to leave.

Domestic violence is serious and letting it play a negative role in your parties’ mediation can be harmful. Ask the right questions and make sure you obtain all the necessary information you need to help protect parties.

Tips When Dealing With Dealing with Domestic Violence

Learn more at https://www.thehotline.org/

People who are in an abusive relationship will stay with their partner for a number of reasons:

1. Their self-esteem is totally destroyed, and they are made to feel they will never be able to find another person to be with.
2. The cycle of abuse, meaning the ‘honeymoon phase’ that follows physical and mental abuse, makes them believe their partner really is sorry and does love them.
3. It’s dangerous to leave. Women are 70 times more likely to be killed in the weeks after leaving their abusive partner than at any other time in the relationship, according to the Domestic Violence Intervention Program.
4. Statistics suggest that almost 5 percent of male homicide victims each year are killed by an intimate partner.
5. They feel personally responsible for their partner’s, or their own behavior. They are made to feel like everything that goes wrong is their fault.
6. They share a life. Marriages, children, homes, pets, and finances are big reasons victims of abuse feel they can’t leave.

Here are a few ways to know if you’re in an abusive relationship that you need to get out of:

1. Your partner has hit you, beat you, or strangled you in the past.
2. Your partner is possessive. They check up on you constantly wondering where you are; they get mad at you for hanging out with certain people or if you don’t do what they say.
3. Your partner is jealous. A small amount of jealousy is normal and healthy, however, if they accuse you of being unfaithful or isolate you from family or friends, that means the jealousy has gone too far.
4. Your partner puts you down. They attack your intelligence, looks, mental health, or capabilities. They blame you for all of their violent outbursts and tell you nobody else will want you if you leave.
5. Your partner threatens you or your family.
6. Your partner physically and sexually abuses you. If they EVER push, shove, or hit you, or make you have sex with them when you don’t want to, they are abusing you (even if it doesn’t happen all the time).