Intimate Partner Violence and Family Dispute Resolution – Coercion, Capacity, and Control

Authors

Kelly Browe Olson, University of Arkansas at Little Rock William H. Bowen School of LawFollow

Publication Date

2024

Abstract

Intimate partner violence (IPV) is one of the most complex issues that family dispute resolution (FDR) professionals encounter. Over one-third of women and one-quarter of men in the United States have experienced physical violence, rape, and/or stalking by an intimate partner in their lifetime (Black et al., 2011), and a majority of separation- and divorce-related cases involve IPV allegations (Ballard et al., 2011; Beck et al., 2010; Belzer, 2003). IPV often escalates, and is most dangerous, during and after separation and creates unique challenges for mediation and other collaborative processes (Beck & Raghaven, 2010; Kelly & Johnson, 2008). Therefore, all FDR professionals (including mediators, lawyers, judges, evaluators, parenting coordinators, and others) should educate themselves about IPV and its implications. They need to know how to discuss IPV with their client and how, if it has been an issue in their relationship, it might hinder their client’s ability to participate in certain FDR processes or to reach an effective resolution.

IPV advocates have long contended that resolving disputes in a relationship based on violence and coercion requires the oversight and accountability of court proceedings (Grillo, 1991) and that mediation and other FDR processes based on collaboration and consensus may be unsafe, unfair, and ineffective for a survivor (Campbell, 2017; Putz et al., 2012; Tischler et al., 2004). Others suggest courts are ineffective in addressing IPV issues and that litigation, too, may result in revictimization (Goodmark, 2004; Nonomura et al., 2021). While there is no ideal process for cases involving IPV, FDR can be successful when the service providers (1) are well-trained, experienced and knowledgeable about IPV; (2) account for their clients’ present and future safely and power dynamics; (3) understand how to empower survivors; (4) focus parties toward an interest-based resolution; and (5) ensure the parties make an informed choice to participate in the process (Cross et al., 2018; Emery et al., 2005). Since the early 1990s, there have been significant improvements in the way FDR professionals and IPV advocates address these cases, yet what is best for families impacted by IPV remains complicated.

In all IPV-impacted cases, professionals must consider specialized support, interventions, and safeguards to assure a safe, fair, and effective process (Davis et al., 2019). Coercive controlling IPV, in particular, creates the most vexing challenges, especially in mediation. A facilitative mediation process encourages parents to engage with one another to consensually determine a parenting plan. But the dynamics of a coercive controlling relationship are about power and control, not about self-determination or consensus. Whenever IPV is identified, mediators must prioritize safety and look for the presence and echoes of coercive control that will impact the parties' abilities to discuss their future arrangements in a truly cooperative manner (Frederick, 2008; Jaffe, 2022).

This chapter begins with an overview and definition of IPV and a brief discussion of the history of IPV within the context of mediation. It describes the importance of screening parties early and often for their capacity to effectively participate and highlights some contemporary screening protocols. It explains the complexities of recommending and using mediation and other collaborative FDR processes in cases involving IPV, discussing techniques and safeguards for families who opt to proceed. Because IPV is a complicating factor throughout FDR processes, including evaluative processes such as arbitration and litigation, it emphasizes the need for mandatory training and continuing education for all FDR professionals. While other FDR processes will be briefly addressed, this chapter will focus on the research and practice in mediation, where IPV has historically been the central focus of debate and of concern.

Document Type

Book Chapter

Recommended Citation

Kelly Browe Olson, Intimate Partner Violence and Family Dispute Resolution, in Family Dispute Resolution 243-267 (Peter Salem & Kelly Browe Olson, eds., Oxford University Press, 2024).