Divorce mediation is a form of dispute resolution that enables couples to divorce without going through the stressful, costly litigation process. Instead of being the experimental approach it was just three decades ago, today divorce mediation is considered standard practice, and its role in visitation disputes and contested custody cases is well established.
Additionally, mediators and divorce mediation attorneys are playing an increasingly important role in domestic violence cases. Because domestic violence has become “a monumental problem” (Georgia Domestic Violence Benchbook, see below) that affects everyone regardless of social, cultural, economic or ethnic factors, and beliefs, training in domestic violence has also become an important part of divorce mediation training. There is also a move to ensure that all mediators (including mediation attorneys) have training related to domestic violence issues.
However, mediation in cases that involve domestic violence is not always recommended, and the subject is still very controversial. While it is sometimes considered appropriate, it is generally considered that “severe” domestic violence cases go through litigation, including criminal cases involving domestic violence.
Tackling Domestic Violence in Georgia
In Georgia, the Commission on Family Violence and SafeSolutions, Inc publishes the Georgia Domestic Violence Benchbook, which is a comprehensive guide to criminal and civil proceedings that are related to domestic violence. Because of the impact of domestic violence, it also serves as “a cornerstone” to help understand and find better solutions to what is known to be a “profound problem.”
Domestic violence is a difficult topic to discuss and it provokes passionate responses, not only from those directly affected, but from those who are involved from the outside, for instance in the social services or judicial system. But is a topic that has to be tackled head on.
The role of mediation and mediation attorneys is covered in detail in the benchbook, together with comprehensive guidelines for mediation in cases that involve domestic violence issues.
Guidelines for Divorce Medication Attorneys in Cases of Domestic Violence
Cases that arise solely under the Family Violence Act, or where a spouse requires protection from family violence, the Georgia Commission on Family Violence states that mediation is not appropriate. However, in cases where mediation is generally considered useful – including divorce and custody – a spouse who alleges domestic violence may opt to work with a mediator. But (and it’s a big one), nothing to do with violent or abusive behavior should be open to negotiation.
When the Georgia guidelines were first developed, there was a lot of resistance to mediators and mediation attorneys getting involved in cases that involved domestic violence. Only recently has a school of thought emerged that believes mediation is a better option than litigation for victims/survivors of domestic violence. But it must be done properly by trained mediators, and with very specific safeguards designed to protect victims. These include establishment of distress signals that victims can use to alert mediators discreetly if they want to end a session, and permission for a friend or legal representative to be with the victim during mediation. Furthermore, a victim of family violence doesn’t have to agree to mediation. They do have a choice.
While the current (2015) guidelines still state that severe domestic violence cases should still be litigated rather than mediated, they also state that mediation shouldn’t be ruled out automatically if mediators or mediation attorneys with the proper training are available. At the same time, mediators must recognize the abusive history the victim has been subjected to, and must identify what sort of domestic violence was involved.
Assessment and screening is required before mediation attorneys are hired. The problem though is that domestic violence is chronically under-reported because victims are afraid to report abusive behavior. So if mediation is chosen, it won’t be a specialized process and a trained domestic violence mediator or mediation attorney won’t be employed. It is for this reason that domestic violence training might become mandatory for all mediators (see below.)
If trained mediation attorneys are involved in divorce negotiations where domestic violence is (or has been) an issue, it isn’t their responsibility to ensure that post-divorce violence is stopped. However the process of mediation is seen as a keystone to setting up a “responsible post-divorce arrangement” for couples that are at risk.
Georgia Commission on Dispute Resolution Committee on Ethics
The Georgia Commissions Committee on Ethics has found that mediation as a process continues to evolve. For this reason, since 1995 the Committee has recommended that victims of domestic violence must be given the opportunity to use mediation channels, and that allegations of domestic violence should not be automatically excluded from the mediation process.
In addition to guidelines for mediation, the Commission also offers detailed guidelines for screening of victims and their partners.
Finding Mediation Attorneys in Georgia
If you are faced with the prospect of divorce and are looking for a sympathetic, highly experienced family lawyer who can help with mediation, contact the team at Hastings ShadmehryFamily & Collaborative Law. Divorce is never easy, particularly when there has been domestic violence. We know this and are here to help in a compassionate way.
