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FAMILY VIOLENCE AND ODR: IS MEDIATION RECOMMENDED IN FAMILIES CROSSED BY DOMESTIC VIOLENCE?

María Eugenia Solé

Mediation Institute- Bahía Blanca Bar Association (Argentina)

 

 

Based on the ecological theories, we understand that family violence responses to a multicausality, namely interactive effects between multiple factors and systems. Different authors have developed, within the conception of ecological theories, various theoretical models that allow us to understand the phenomenon of family violence. While there are common concepts, we can think that each author focuses on some of the factors or systems involved in the causes. The development of these different models exceeds the claims of this analysis.

 

 

Keywords: Mediation, Domestic violence, Online Dispute Resolution, ODR, ADR

 

1) Concept of family violence

We can define family violence as all forms of relationship abuse among members of a family. We call abuse to any conduct which, by action or omission, causes physical or psychological harm to another member of the family.

Domestic violence or family violence includes all those violent acts, such as the use of physical force, harassment or intimidation, produced in the bosom of a home and which are perpetrated, at least, by a member of the family against any other member of the family.

The factors are diverse: hostility in large cities, economic problems, competition between men and women, pathological family models, the demand by adults towards children to provide the former with rewards that they failed in other aspects of their lives, among others.

2) Causes and types according to the people involved

While the conflict is inevitable and inherent to the family, violence is a manifestation of inadequate tensions and conflicts that go beyond the capacity of response of individuals, found in serious situations of psycho-emotional, socio-cultural or economic limitations. In this sense, violence is the extreme manifestation of the constraints to which families are subjected.

Limitations do not "cause" the abusive behavior, but they create the enabling environment to bring violent conducts and facilitate the offender to make no charge of his conduct, simplifying or minimizing the event happened between the parties.

Based on the ecological theories, we understand that family violence responses to a multicausality, namely interactive effects between multiple factors and systems (individuals, families, communities, etc). Different authors have developed, within the conception of ecological theories, various theoretical models that allow us to understand the phenomenon of family violence. While there are common concepts, we can think that each author focuses on some of the factors or systems involved in the causes. The development of these different models exceeds the claims of this analysis.

The causes of violence tend to be multiple, but its manifestations have always a common denominator: the abuse of power.

3) Domestic violence or couple violence



The society in which we live has awarded different roles and most families take them as normal without questioning.

From this position, with distinct roles for men and women, we find what is called complementary couple.

Nowadays, with the development of women in paid employment, arises for them a second role that is added to the work at home.

This exposes men to also perform two roles: a family role within the scope of their home and the other, on the basis of work. This type of relationship is known as symmetric couple.

Firstly, following Perrone and Nannini, we can set the violent act as "any attack on the physical and psychological integrity of the individual, accompanied by a feeling of coercion and danger". This definition takes into account an "objective" component of attack, as a violation of an individual and personal limit, which is accompanied by a certain "subjective" component, given by feelings of coercion and danger, trying to summarize a range of very specific feelings that arise in conversations that tend to remain in mediation.

Relationships that include violent acts in the sense defined above refer to a historical relational plot, organized according to certain rules that hold violent acts, and which are repeated over and over again, in such a way that can be seen as stable rules of relationship.

Certain authors sustain that violent family relationships do not constitute an indiscriminate or multiform phenomenon, but that, conversely, show certain organized patterns of interaction that can be categorized in two possible ways: aggression violence or punishment violence.

Aggression violence is a form of violent relationship that is built on a symmetrical pattern, i.e., a pattern of relationship in which A and B are in an attitude of equality and competition. If A adopts a particular conduct, B will respond with other conduct that locates him/her at a level of equality with respect to A, each claiming for himself/herself the same status in the relationship with the other.

Punishment violence is built on a complementary pattern, i.e. a relationship in which both actors have agreed to a difference between them and a relationship of mutual adaptation. Both accept they have a different status in the relationship, and that while one proposes the other accepts.

Both forms are at the same time, characterized by stiffness in the use of guidelines, rigidity which is confirmed by the observation of relationships over time, repetitive and almost stereotypical, showing each one of these modes a particular dynamic.

In aggression violence, violence appears as "an exchange of hits", and the escalation leads to mutual aggression. With regard to this point, some authors are of the opinion that it does not matter if one is physically stronger than the other, because the true confrontation is located on the existential level. Violence is two-way, reciprocal and public, because there is no intent of concealment. Identity and self esteem are preserved, because the other is existentially recognized as another. Violent episodes are lived as dystonic, and the actors show their concern and willingness to change.

In the continuity of this guideline, the escalation stops from time to time in a "complementary pause". The authors say "... The person who carried out the violent act apologizes, passes to the low position and takes care of the cure of the person who suffered violence. The latter momentarily abandons confrontation and agrees to be treated..."

This break includes two moments: the emergence of feelings of guilt, which is the engine of a movement of repair, and a second stage of established behaviors resulting in a mechanism of forgetfulness, minimization, no guilt sense and renouncement of violence, which remain as a myth of harmony and solidarity.

Generally, the intervention of a third party is possible during this break. The couple seeks therapeutic help or another type of social intervention. When with the help of a third party, the couple begins to talk about violence, they paradoxically feel that they no longer need it because they have regained a sense of balance and a conviction that acts of violence will not recur.

On the other hand, punishment violence falls within the framework of an unequal relationship, and manifests itself in the form of beatings, humiliations or deprivation. One of the actors is positioned in a condition of superiority over the other, and feels entitled to inflict the other person suffering, that from his/her own construction of reality the other actor deserves and must receive without rebelling.

In this type of interaction, violence is unidirectional, intimate, and it does not pause. Both actors hold a belief system according to which who emits the violence should act in that way and who receives it is convinced that must comply with what is imposed. Violence remains hidden and nobody speaks about it on the outside, and thus, the access of a third party is much more difficult and requires inclusion strategies different from the case of aggression violence.

Looking at the individual level, it turns out that both actors have a very low self esteem. The violent person wants to model the other "to become as he/she should be", according to a rigid belief system. Every manifestation of the other involving a difference with respect to that belief system is experienced as an intolerable frustration that it is necessary to correct.

4) Characterization of violence as a social problem

Although it is thought that family violence is a matter concerning the family because it is where violence is produced, it is an eminently social issue and from this perspective we must understand and try to resolve it.

The use of force, even physic, has been traditionally accepted as corrective - especially over children - under the so-called intended "best correction"; and this problem does not happen in isolation, but in the context of a society that approves and reinforces the sexist conceptions.

Situations of violence against women while deprecated from social discourse are not only socially tolerated but also hidden. It is precisely culture which defines the profile of the beating man and the beaten woman, as well as their own personal history.

5) The participation of conflict operators in family violence situations

According to Lisa Parkinson, when one or both partners come to mediation, the way that occurs to them is similar to a crossroad with traffic lights. Before proceeding we should reduce speed and check if the light is green, amber or red, and if it is fixed or flashing. In the following situations, the lights are red and mediation would probably be considered inappropriate:

 Certain categories and history of domestic violence.

 Indictment or confession of child abuse.

 Intimidation, threats, extreme power imbalances.

 Mental illness.

 Mental incapacity.

 Alcohol or drugs abuse that interferes with the ability to make rational decisions.

 Evidence of deception, such as providing false information.

 Refusal or inability to accept any of the basic rules of mediation.

6) The situation of AMCR[1] in Argentina in relation to the problem of family violence: the experience from the judicial approach

Taking into account the dynamics of family violence allows conflict operators to make a first distinction: the relational context of family violence has characteristics that are different and particular, compared with family contexts which exclude violence as a usual form of relationship.

At the same time, in this context, there are also different modes of relationship, laying down relevant differences from the perspective of mediation. We can distinguish three large relational contexts that include violence: the two forms described above as relationships built on symmetry and complementarity, and the one that is often called episodic situations of violence.

Couples who live episodic situations of violence linked to the crisis of separation have a very different context compared with those couples in which violence is a historic and stable guideline in their relationship. In this sense, Eduardo Cárdenas sets the difference between "cases of violence" and "cases with violence".

Cárdenas says:

“…Most of the families have gone through violent episodes. In the seventy percent of marital separations, for example, there have been violent events in the periods immediately before and after separation. Many times there is violence in conflicts between parents and teenagers, or when there is a mental patient in the family. These are not 'cases of violence', but ‘cases with violence'. These cases should not be treated as ‘of violence’ because the focus is not this one, but the divorce or other problems. ... Using this classification, operators can help the couple to agree an intermediate focus on an objective of growth, rather than to focus on violence. Their process of growth will be the one that teaches them to make violence unnecessary..."

Episodes of violence linked to the crisis of separation have been able to be contained by the frame of mediation as one of the problems to talk about during the process. The clearest differences in relation to cases in which violence is a stable pattern appears in the recognition of both parties of the violent episodes, the possibility of individual and joint reflection on these situations and the concern about the damage that can be caused to each member of the couple and their children. Episodes of violence have been experienced as moments of chaos and arguments to justify them have not appeared.

In these cases, mediation contributes to generate a useful context, which helps the parties to contain these situations. The usual frame of work in mediation offers a suitable space for dialogue and to untangle the discussions, and the punctual agreements relating to children become possible, without significant differences compared to mediation where there is a history of violence.

There are significant differences from the point of view of the potential to help in mediation between the two forms:

· In the cases identified as corresponding to a symmetrical pattern we can work from the frame of mediation, in processes that work together with other movements with a change in the family game. In these cases, violence has been incorporated as a topic on the agenda. In different ways, this relational frame appears as the basis of any proposal that parties can make regarding how they will reorganize future relations. I.e., we can keep the hypothesis that participation in mediation and the search for separation agreements may be part of the actions that the couple hold to repair the last violent encounter, and the possibility of dialogue and the mutual recognition of the needs, fears, and common and individual projects at the same time serve as mechanism of forgetfulness, minimization or renouncement of violence. Some conflict operators have run this idea as a possible way of contact between the parties. It is quite frequent that, having been able to talk about violence and having shared some ideas of reorganization of their bonds, the couple often comes to a second or third meeting with the news of their reconciliation or a feeling of harmony and "happy ending", which operators must be skeptical and cautious about, trying to maintain present at the mediation table the recent history and the reiteration of this movement in the future of the relationship, and working on things that are going to do if the new reconciliation fails or if some of the agreements do not work.

· On the other hand, in cases of complementary violence, the usual speech of the man who has exercised violence against his partner reflects an attempt to justify minimization or renouncement of violence, by the use of arguments that say, for example, "what was I supposed to do, if I found her with another man", or “all couples have fights", or "she knew what was going to happen, she was warned". A request for mediation does not appear as a space of negotiation with his ex - partner but as a dynamic of accusation and defense, in which the strategy is her denigration, usually in her maternal ability, in her role as wife and housewife, or, more profoundly, in her female identity. Most of the time conflict operators find it difficult to transform the conversation towards a dynamic that will result in recognition of the partner as a subject with own interests.

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7) Conclusions

Research studies on mediation and abuse reveal the importance of specialized detection procedures.

In addition, in this specific topic we must also bear in mind that behaviors that are considered acceptable in certain communities can be completely reprehensible in others. Definitions of domestic violence and judgments of value on the perpetrators of such acts vary greatly among those who provide assistance in these cases, as among those who request it.

It is imperative that we take full awareness of our cultural conditioning, personal values and tendencies to stereotype, that blind us respect to signs that abuse is occurring or that fear is present.

I agree with Lisa Parkinson that both direct experience and the results of research indicate that mediation may be appropriate and may be beneficial for both partners, provided that respect for a code of ethics and that some specific precautions are taken to ensure that:

 The corresponding controls have been carried out to establish if there is any concern about violence and abuse, and if there has been any previous incident.

 The process safeguards and rules that will be used have been explained in detail.

 Both parties have agreed to participate voluntarily and after having been informed. The mediators must continuously verify that no partner is participating under coercion.

 There are separate waiting areas available, so that no person remains in the same room that the other as tension grows between them.

 If a party is afraid of entering or leaving the building at the same time than the other, urgent measures should be established to allow them to do so separately.

 Mediators have an adequate knowledge of orders for personal protection that courts may grant.

 Mediators have been trained to recognize nonverbal signals that abuse may be occurring and can conveniently derive the case for the victim to receive legal advice.

 Mediation services provide appropriate conditions and labor cautions, including the prohibition for a mediator to work alone in a part of the building and the implementation of a system of emergency call or alarm, in good state of operation.

Nonetheless, I also agree with Eduardo Cardenas’ observations about the difference in the treatment of the "cases of violence" and the cases "with violence". With regard to the former, mediation can only provide some utility in situations in which violence has been symmetrically exerted, while for the latter work in mediation would not be advisable without previous additional steps, such as the submission of the participants in the relevant therapeutic treatments, the cessation of cohabitation, etc.

Finally, the cases of episodic violence linked circumstantially to a family crisis involve a completely different treatment, since the violent pattern is not installed as permanent or stable in the family bond. In practice, these episodes generally related to the crisis of separation can typically be contained satisfactorily by the frame of mediation, as one of the problems to talk during the process, generating a useful context of containment.

With regard to the current situation in Argentina, I propose de lege ferenda to analyze the possibility of enabling remote or virtual mediation procedures, thus avoiding the traditional mediation audiences, expressly prohibited by law 26.485.

 

 

Bibliography

- Cárdenas Eduardo; "Violence in couples. Interventions for peace from peace"; Buenos Aires; Granica, 1999

- Perrone Reynaldo- Nannini Martine; “Violence and sexual abuse in the family. A systemic and communicational approach”, Buenos Aires, Paidós, 1997

- Parkinson Lisa; “Family Mediation”, Family Practice Series, Sweet & Maxwell

- Gianella Carolina- Curi Sara, “Mediation and family violence in the judicial context”, www.mediadoresenred.org.ar/publicaciones/avfliar.doc

 

 


[1] Appropriate Methods of Conflict Resolution


Date: 2015-01-11; view: 481


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