A Judge’s Guide

COMMENTARY
Supervised visitation centers are an essential component of an integrated community intervention system to
eliminate abuse and protect its victims. Visitation centers may reduce the opportunity for retributive
violence by batterers, prevent parental abduction, safeguard endangered family members, and offer the
batterer continuing contact and relationship with their children. This section requires a state to provide for
the existence of visitation centers but does not mandate that the state own or operate such centers, nor that
the centers be operated at public expense.
Sec. 407. Duty of mediator to screen for domestic violence during mediation
referred or ordered by court.
1. A mediator who receives a referral or order from a court to conduct mediation
shall screen for the occurrence of domestic or family violence between the parties.
2. A mediator shall not engage in mediation when it appears to the mediator or
when either party asserts that domestic or family violence has occurred unless:
(a) Mediation is requested by the victim of the alleged domestic or family
violence;
(b) Mediation is provided in a specialized manner that protects the safety
of the victim by a certified mediator who is trained in domestic and family
violence; and
(c) The victim is permitted to have in attendance at mediation a supporting
person of his or her choice, including but not limited to an attorney or
advocate.
COMMENTARY
This section requires mediators who receive referrals or orders from courts to screen for domestic or family
violence between the parties. Screening must include an assessment of the danger posed by the perpetrator,
recognizing that victims of domestic violence are at sharply elevated risk as they attempt to end the
relationship and utilize the legal system to gain essential protective safeguards. Subsection 2 articulates a
practice standard for the mediator who discovers that domestic or family violence has occurred. See
Appendix III.
Drafters note: Drafters must look to general provisions concerning mediation in their state laws and insert
exception as provided in sections 311 and 408.
The Model Code provides alternative sections concerning mediation in cases involving
domestic or family violence. Both of the sections provide directives for courts hearing
cases concerning the custody or visitation of children, if there is a protection order in
effect and if there is an allegation of domestic or family violence. Neither of these
sections prohibits the parties to such a hearing from engaging in mediation of their
own volition. For the majority of jurisdictions, section 408(A) is the preferred section.
For the minority of jurisdictions that have developed mandatory mediation by trained,
certified mediators, and that follow special procedures to protect a victim of domestic or
family violence from intimidation, section 408(B) is provided as an alternative.
Sec. 408(A). Mediation in cases involving domestic or family violence.
1. In a proceeding concerning the custody or visitation of a child, if an order for
protection is in effect, the court shall not order mediation or refer either party to
mediation.
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