Yes, No, and Maybe: Informed Decision Making about Divorce Mediation in the Presence of Domestic Violence

Divorce mediation in the context of domestic violence is one of the most controversial issues in family law today. Some believe that mediation is never appropriate when domestic violence has taken place, and others believe that it is always appropriate and should be mandatory. These views can be reconciled by taking a third approach, that mediation is sometimes appropriate but that this decision must be made on a case-by-case basis in consultation with the abuse survivor. The central premise of this article is that victims of domestic violence should have the opportunity to make an informed choice about which divorce process - mediated or adversarial - will best meet the needs of their families. Because families are different and because both adversarial and mediated proceedings vary in quality and accessibility, decisions about what process to use must be made on an individual basis in light of the real, not theoretical, options available to the family. The article uses social science research to (1) establish that families experience different types of violence and consequently differ from each other in ways that are significant for choosing a divorce process; (2) provide objective information on how mediation and the adversarial process compare in terms of overall effectiveness, satisfaction rates, and compliance with agreements or orders; and (3) evaluate the extent to which commentators\u27 fears about mediation and domestic violence have been substantiated. The article analyzes this information and suggests factors, both individual and systemic, to be considered in choosing a divorce process. Finally, the article discusses specific practice safeguards and makes recommendations for future change

The Uniform Collaborative Law Act and Intimate Partner Violence: A Roadmap for Collaborative (and Non-Collaborative) Lawyers

This Article examines the intimate partner violence provisions of the Uniform Collaborative Law Act “UCLA” and provides an analytical roadmap for collaborative lawyers. The lack of required intimate partner violence training for collaborative lawyers presents a major roadblock for implementation of the Act. Consequently, states adopting the UCLA should take immediate steps to ensure that courts and bodies regulating lawyers require ongoing training. In the meantime, to gain valuable expertise and avoid potential liability, collaborative lawyers should voluntarily seek it

The Silent Victims: Children and Domestic Violence

Few of us would fail to intercede if we happened upon a child being physically attacked. Most of us would shield even an unknown child from witnessing a traumatic event. If we knew that a child might come to harm, such as a toddler playing in traffic, most of us would escort that child to safety. On a personal level, we are committed to the well being of our children. As a society, however, we close our ears to the cries of the children growing up in violent homes. It is now time to give them voice. New research reveals that spousal abuse and child abuse often occur in the same families. Not surprisingly, children growing up in violent families are more likely to become violent teenagers and adults. If we fail to help these children, we acquiesce in training the next generation of abusers and criminals. More importantly, we leave our youngest and most vulnerable victims to cope unaided with their trauma and terror. Although the Minnesota Legislature has taken proper measures to address domestic abuse, further measures are needed to strengthen our civil legal framework. Part II of this article surveys recent social science research on family violence, including the dynamics of violent relationships and the consequent effect on children. Part III examines Minnesota\u27s current statutory framework regarding child custody, visitation, representation and child protection. Specific statutory and procedural changes are recommended in order to more fully protect children. The need for professional education and coordination of services is discussed in the context of preventing future violence

Look Before You Leap: Court System Triage of Family Law Cases Involving Intimate Partner Violence

Family courts are increasingly interested in matching parties with appropriate dispute resolution processes and related services. For many parties, especially those who are self-represented, triage of cases could be helpful and efficient. Nevertheless, implementation of triage in complex cases may bring unintended repercussions, and in the spirit of averting these, this Article identifies and discusses challenging issues that become apparent when triage systems are viewed through the lens of intimate partner violence. Some questions about triage in the context of intimate partner violence were raised at the Wingspread Conference on Domestic Violence and Family Courts and explored more fully by Loretta Frederick in her 2008 article titled “Questions About Family Court Domestic Violence Screening and Assessment.”1 In light of subsequent research and commentary, this Article revisits the topic and concludes that because thinking about triage is in its infancy, important questions remain unanswered. Intimate partner violence poses a number of complicated challenges for any system of triage, including: (1) questions about the complexity of decision-making about dispute resolution alternatives; (2) the feasibility of quickly and accurately screening for intimate partner violence; (3) the substantive and procedural safeguards necessary to preserve confidentiality, protect litigants’ due process rights, and provide accountability; and (4) the question of whether courts or parties are best positioned to make these decisions. After analyzing these questions, we conclude that maximizing the ability of parties to make informed choices about participation in dispute resolution processes is paramount. We urge courts to make this a primary goal of any system of triage developed

Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process

During the last fifty years, the process of divorce has undergone a remarkable transformation. This article examines the sweeping breadth of the change and the underlying societal forces behind it. As the family court landscape has changed, a ripple effect has occurred necessitating reconsideration of the roles that lawyers and judges play in the divorce process. Although lack of judicial resources has fueled some of the change, deep funding cuts foreshadow a less positive transformation, one potentially resulting in a two-tiered system of justice for families

Differentiating Types of Domestic Violence: Implications for Child Custody

This article examines child custody determinations through the lens of a domestic violence typology. The resulting analysis (1) reconciles competing viewpoints and contradictory evidence about domestic violence; (2) matches families with appropriate child custody court procedures and services such as parent education, mediation, supervised visitation and parent coordination; and (3) exposes serious deficiencies in current domestic violence childcustody statutes

Yes, No, and Maybe: Informed Decision Making About Divorce Mediation in the Presence of Domestic Violence

Divorce mediation in the context of domestic violence is one of the most controversial issues in family law today. Some believe that mediation is never appropriate when domestic violence has taken place, and others believe that it is always appropriate and should be mandatory. These views can be reconciled by taking a third approach, that mediation is sometimes appropriate but that this decision must be made on a case-by-case basis in consultation with the abuse survivor. The central premise of this article is that victims of domestic violence should have the opportunity to make an informed choice about which divorce process - mediated or adversarial - will best meet the needs of their families. Because families are different and because both adversarial and mediated proceedings vary in quality and accessibility, decisions about what process to use must be made on an individual basis in light of the real, not theoretical, options available to the family. The article uses social science research to (1) establish that families experience different types of violence and consequently differ from each other in ways that are significant for choosing a divorce process; (2) provide objective information on how mediation and the adversarial process compare in terms of overall effectiveness, satisfaction rates, and compliance with agreements or orders; and (3) evaluate the extent to which commentators\u27 fears about mediation and domestic violence have been substantiated. The article analyzes this information and suggests factors, both individual and systemic, to be considered in choosing a divorce process. Finally, the article discusses specific practice safeguards and makes recommendations for future change