A recent article in the Yale Journal of Law and Feminism entitled “Moving Out of the 1990s: An Argument for Updating Protocol on Divorce Mediation in Domestic Abuse Cases,” 22 Yale Journal of Law and Feminism 97 (2010), makes an interesting argument that many states need to reexamine policies banning or restricting mediation in divorce proceedings involving domestic violence.
According to Mary Adkins, co-student director of the Yale Domestic Violence Clinic, as the number of divorce cases rapidly increased during the late 1980’s and early 1990’s (70% between 1984 and 1996), courts began to more widely experiment with a number of alternative dispute resolution (ADR) models in divorce proceedings. A large number of judges, scholars and domestic violence advocates expressed concern about the appropriateness of using mediation in cases where domestic violence occurred, however.
The National Council of Juvenile Family Court Judges was influenced by these critiques in drafting Sections 407 and 408 of the 1994 Model Code on Domestic and Family Violence which, in turn, influenced many states to limit or completely ban divorce mediation in circumstances of domestic violence. The author points to the American Bar Association Commission on Domestic Violence’s 2008 publication “Mediation in Family Law Matters Where DV is Present” to illustrate the extent to which mediation has been restricted nationwide.
The author asserts that critics of the use of ADR in such cases were focused on the so-called facilitative model of mediation, which stresses features such as brainstorming and validating both parties’ points of view, rather than the evaluative model, which focuses more on efficiency and legally-influenced outcomes such as settlement agreements. The author states this distinction is important because the evaluative model is the dominant model actually used in divorce mediations and the model can easily be tailored to offer enhanced protections for victims of domestic violence.
The author argues, as a matter of public policy, the premises underlying the position taken by the National Council of Juvenile Family Court Judges and many states should be reevaluated so the victims of domestic violence are not unfairly prohibited from taking advantage of mediation settlements which may be preferable to litigation in many circumstances.
Section 6.602(d) of the Texas Family Code Annotated currently allows a victim of domestic violence to object to mediation proceedings in a suit for dissolution of marriage, but does not forbid mediation outright. Additionally, this section of the Family Code also incorporates certain protections recommended by the article’s author, such as allowing for remote mediation. Texas Family Code Annotated Section 153.0071 extends similar protections to mediation proceedings related to custody disputes, but also allows the court to decline to enter a judgment pursuant to a mediation settlement if a party to the agreement was a victim of domestic violence where the terms the of the settlement agreement are not in the best interests of the child.
Disputing recently discussed a case decided earlier this month by the Houston First Court of Appeals which allowed for cooperative law agreements in divorce proceedings here.
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