For any mediation to be effective, two essential criteria must be met – every party involved in the dispute must a) adequately present his or her concerns, and b) freely participate in arriving at a resolution to the dispute.
Mediation is generally an ideal manner to settle conflicts pertaining to family disputes. However, in cases where there is an imbalance of power between the people involved in the dispute, the two essential criteria mentioned would be absent and any efforts at mediation is likely to fail.
When an imbalance of power happens, it results in one party being unable to adequately present his or her case either because of intimidation, as in the case of domestic abuse or because of emotional/psychological problems, or simply because one party is in a position of dominance compared to the other.
While many situations may cause an imbalance of power in a family, the primary reasons are:
- History of domestic violence
- Likelihood of child abuse
- Emotional and psychological problems that affect a person’s capability to fully participate in mediation
- Possibility of endangering physical safety of persons involved
- Possibility of self-injury
- Unequal bargaining power between the two sides
An imbalance of power between people involved in a family dispute limits the chances of achieving a free and fair resolution to the dispute. According to the Family Law Regulations of 2008, Family Dispute Resolution (FDR) practitioners need to ensure that a pre-screening, similar to the DOORS programme, is conducted before the commencement of the FDR process to detect conditions that may cause a power imbalance between the involved parties.
If a FDR practitioner finds a possibility of any of the above situations in a family dispute, then the case would be deemed inappropriate for mediation and then be heard in a court of law.
Necessity for pre-screening in family disputes
Pre-screening is an essential step before all mediations, especially in family disputes, because of the following reasons:
1. Fear of expression
Victims of domestic abuse live in constant fear of their violent partners. Such victims will be unable to boldly present their concerns while in the same room as their partner. They could feel intimidated, which keeps them from communicating openly. For mediation to be successful, it is essential that both parties are able to communicate freely and work jointly to derive a common solution. The role of the mediator is to provide a safe, protected and civil environment and in situations where this cannot happen, mediation will not produce a successful outcome.
2. Limited likelihood of achieving a fair solution
Where one party is unable to speak openly due to intimidation, the discussions in a mediation session may fail to be fruitful. The talk will very likely be skewed in favour of the dominant partner and the resulting solution, if any, is not a fair or a lasting solution to the dispute. As the role of the mediator is to level the playing field, if this can’t be achieved then the mediation is unlikely to resolve and the mediator may end the session.
3. Mediation cannot protect victims of child abuse
In families with a history of child abuse, the children may have deep emotional and psychological issues and thus will need to be protected from the abuser. Since mediation is not a legally binding procedure, and mediators only facilitate the process without passing judgements, it does not have the legal power to ensure the children’s safety once mediation concludes. Such cases of child abuse are better off handled in a court of law, which can evaluate the case and pass a judgement that ensures the safe future of the children.
Mediators can pre-screen family disputes by talking to partners separately and asking the appropriate questions to detect situations before determining whether mediation is a suitable option.