A Judge’s Guide

C. Children are further traumatized when they fail to see the true victim provided
protection and witness the batterer gain powerful leverage via a mutual order. Not only is the
adult victim endangered by mutual orders, but the children also are placed at greater risk for
future harm. Our children need to see that the laws will protect them in their homes as well as
on the street, regardless of how smooth the batterer is. The court allows the batterer to
successfully nullify the protective order’s possible safety net when mutual orders are permitted.
D. Since victims are often condemned for staying with the abuser or requesting to dismiss
orders, the victims brave enough to seek protection should be treated seriously. Unless the
court finds that mutual combat has taken place, 273 and absent one party acting in self-defense,
orders issued to both parties will have a chilling effect on the true victim coming forward for
help again.
XVI. MEDIATION TOO OFTEN IGNORES CHILDREN’S SAFETY ISSUES. 274
A. Regardless of the mediator’s skill, the victim is endangered for disclosing any
information about the batterer’s behavior. Since there is little the victim can reveal without
fear of retaliation, the mediator’s attempts to negotiate a peaceful resolution can only be viewed
as disingenuous. The power imbalance between victim and offender is too great: what is the
victim supposed to give in exchange for safety? 275 Custodial interference and prolonged
custody battles are common tactics of batterers after separation. The victim must have a forum
which will treat the renewed abuse seriously and make clear to the batterer that his behavior
will not be tolerated. 276 We do not mediate civil rights’ offenses because persons of color have
a right to be free from abuse and the offender is to receive the unequivocal message that racist
behavior will not be tolerated. If the court insists that mediation must occur, ensure that the
victim and offender are not in the same room, 277 and that the parties have legal counsel
present. 278
B. Batterer’s experts report that most batterers will not negotiate in good faith. Mediation
relies on the assumption that both parties will enter all agreements with the intention of
compliance. However, since batterers operate on the premise that they are entitled to use
violence to achieve their goals, mediation is an inappropriate venue to attempt resolution of
273
Det. Charles Masino, Chief of the Phoenix Police Dept’s Domestic Violence Unit, states that mutual combat
arrests should occur in no more than 3% of the arrests, and that even that number is probably too high, and that
mutual orders place the officers at greater risk because the abuser has not been given a clear message.
274
Jennifer P. Maxwell, Mandatory Mediation of Custody in the Face of Domestic Violence: Suggestions for
Courts and Mediators, 37 FAMILY AND CONCILIATION COURTS REV. 335 (July 1999); and infra.
275
Barbara Hart, Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody
Mediation, 7 MEDIATION Q. 317, 322 (Summer 1990); Andree G. Gagnon, Ending Mandatory Divorce
Mediation for Battered Women, 15 HARV. WOM. L.J. 272 (1992).
276
Id.
277
Harvey I. Hauer, Making Mediation Work, FAMILY ADVOCATE, American Bar Association’s Family Law
Section Journal, p. 27 (Spring 1997).
278
Unrepresented women tend to feel coerced and have greater difficulty participating. Eric Galton. MEDIATION:
A TEXAS PRACTICE GUIDE p. 100 (Texas Lawyer Press, 1993), as cited in Melanie Kane-Gonzales, supra note
83 at 28.
268