Domestic violence issues are present in many Family Court cases including those referred to family law mediation programs. Well-meaning judges, attorneys, mediators and other professionals often mistakenly believe that both parties are able to assert their own interests in the presence of the other party as long as a third party is present, and they may pressure the victim to negotiate with the abuser against their best interests. When victims of abuse express a reluctance to mediate, they are often seen as uncooperative and may be forced by mandatory mediation rules to mediate. Recent studies have found, in fact, that domestic abuse is present in almost 50% of all cases referred to family law mediation, yet only 5% of these cases were originally determined to be ineligible for mediation due to domestic violence.
In these cases where they are forced into such an inappropriate mediation situation, victims of abuse may agree to whatever their abuser suggests out of fear and intimidation. The abuser, who is frequently a skilled manipulator, is able to control and dominate the process. The resulting agreements maybe overwhelmingly in the abuser’s favor and harmful to the victim and children.
In Arizona, mediation is often required whenever parenting time and legal decision-making (custody and visitation) of a child are disputed or when parents are modifying existing court orders. But Arizona does have a little known ‘mediation opt-out’ provision for victims of domestic violence and does not require current physical abuse or the threat of physical harm to waive the mediation requirement. To be eligible to waive mediation, a victim must show that an Order of Protection is in effect or that there has been conduct in the relationship that could form the basis for an Order of Protection. In addition, the Court must put in place reasonable procedures to protect a victim from harm if mediation is attempted, such as staggering the arrival and departure times of the parties or meeting with each party in separate rooms.
An experienced family law attorney can review your patterns of interactions with your partner to determine whether mediation is appropriate for you and discuss strategies to promote your safety and assist you in preparing a mediation waiver request.One of the experienced attorneys here at OWENS & PERKINS would be happy to speak with you and discuss your specific legal situation. If you would like to schedule an appointment please call us at (480) 630-2464 or CLICK HERE to schedule your free 30-minute consultation.