Moving Out of the 1990s: An Argument for Updating Protocol on Divorce Mediation in Domestic Abuse Cases

Today, an overwhelming number of states and local jurisdictions presume domestic violence victims unsuitable for divorce mediation. The National Council of Juvenile and Family Court Judges ("NCJFCJ") Model Code on Domestic and Family Violence ("Model Code") and similar state codes have codified this presumption. This Article argues that these statutes grew out of 1980s and early 1990s critiques articulating concerns that mediation threatens domestic violence ("DV") victims' safety and interests. These critiques imagined a model of mediation that ultimately did not comport with the model of mediation that emerged in family courts throughout the United States in the 1990s. Court mediation today tends to be evaluative rather than facilitative and settlement focused rather than understanding based. These features of court mediation both protect the victim's interests better than more facilitative models and allow certain precautions to be taken for victims who are less suited to the quintessential private mediation, with its specific and distinct goals. This Article argues that because legislation crafted in response to critiques of divorce mediation for domestic violence victims in the 1980s and 1990s inaccurately reflects the nature of court mediation today, this legislation fails to respond to the full range of DV victim experiences, needs, and abilities. Excessive focus on the danger of mediation for victims without consideration of the costs and risks of the most common alternative-litigation-is a mistake. These protocols are outdated and ineffective: they discourage or altogether prohibit DV victims from participating in mediation even as empirical studies have demonstrated a number of compelling reasons for their participation in it, and they do so in order to protect them from dangers that appear today to be largely illusory. We should reform policies accordingly. A.B., Duke University; J.D., Yale Law School. Special thanks to Professors Robert Post and Reva Siegel for their guidance and encouragement. Copyright Q 2010 by the Yale Journal of Law and Feminism 98 Yale Journal of Law and Feminism [Vol. 22:97 INTRODUCTION ...... 98 I. A BRIEF HISTORY OF COURT-SPONSORED MEDIATION AND THE PRESUMPTION AGAINST MEDIATING DOMESTIC VIOLENCE CASES .... 100 II. THE EVALUATIVE-FACILITATIVE SPECTRUM AND DOMESTIC VIOLENCE.. 102 A. Emergence of the Two Approaches ...... 102 B. Domestic Violence and Mediation: Facilitative Protections in an Evaluative World 106 C. The Role of the Battered Women's Movement ...... ....... 110 Ill. RISKS POSED BY COURT MEDIATION AND LITIGATION 114 A. Concern That Victims Will Be Unable to Voice Their Own Interests ..... 115 1. Evidence That Victims Fail to Assert Their Needs Is Lacking 115 2. The Risk That Victims Will Fail to Represent Their Interests Adequately Is Not Necessarily Better Addressed by Litigation 117 B. Current Protocol Inconsistently Defines Victims' Autonomy and Inadequately Considers Potential Interests and Safety Concerns ..... 123 1. "Opt-in" Provisions Are Inconsistent and Dangerously Presumptuous ........ 123 2. The Presumption Against Mediation Misreads Victim Interests 125 a. Financial Interests ........ 125 b. Process Trauma. 127 c. Safety 128 CONCLUSION AND RECOMMENDATIONS 129