Can We Use Alternative Dispute Resolution Methods in Cases of Domestic Abuse Against Women
By Aarya Adhikari
Domestic abuse also called “domestic violence” or “intimate partner violence’ is defined as a pattern of abusive behavior in any relationship which is used to gain or maintain power and control a person.[1] Abuse can be seen in different spheres, as it is not just physical but sexual, emotional, economic, or psychological actions or threats of actions that influence another person. [2] This includes any behaviors that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure, or wound someone. It can occur within a range of relationships including couples who are married, living together, or dating, or even towards family members. [3]
According to UN Women, At least 35% of women in the world have experienced some kind of physical violence/and or sexual violence inside their homes in their lifetimes. [4]Further, there has been exponential growth in cases of domestic violence during the COVID-19 pandemic. [5]Due to this reason, by September 2020, 40 countries had integrated prevention and response to violence, especially violence against women and girls into their COVID-19 response plans, and almost 121 countries have adopted some kind of measures to strengthen services for survivors of domestic violence during this global crisis.[6] Adding to that at least 155 countries have passed laws on domestic violence specifically.[7]
Even though this dataset sounds promising there is a problem, less than 40% of the women who experience violence seek the help of any sort.[8] Further, the issue of domestic violence in the nature of its being happens inside homes which gives it the tag of being a “hidden private type of violence”. [9]Therefore, very few women look to formal institutions such as the police or health services, and rather women who seek help at all mostly look to family members and friends.[10]
Hence, my question, “how can we address these instances of violence inside homes and make women feel safe?” Or rather, “are there alternative dispute resolution processes that play a role in providing these women access to justice?”[11]
Many have suggested that private and informal practices such as mediation can be an effective way in handling issues of domestic violence. [12]Many judicial systems around the world have been actively using mediation to solve a wide range of family law disputes, hence slowly domestic violence cases are finding their way into the ADR system[13]. However, both the victims’ and the legal systems’ willingness to use ADR in the context of domestic violence reflects and reinforces potential consequences to the idea that domestic violence is traditionally a family problem or further an issue of purely private concern.[14]
Mediation has its focus on communication and private resolutions which are specially tailored to the needs of individual parties.[15] These are certainly, closer to a therapeutic model than that of an adversarial dispute resolution which is embraced by the courts.[16] Even though familial conflict is amenable to informal dispute resolution the suggestion that ADR should be used to address issues of violence that transcend the private and mundane nature of domestic life is troubling.[17]
Further, mediation has been considered a substitute for litigation, which relieves congested courts and lowers costs for the parties. Increasing docket pressures and skyrocketing litigation costs may force more and more disputes relating to violence into the sphere of ADR.[18] However, even though it is considered a substitute, mediation differs from court adjunction. [19]Hence, substituting mediation of civil and criminal cases possesses a potential threat not only to women who face domestic violence but also the society as a whole, as mediation reduces the public oversight and discussion on the issue of domestic violence.[20]Further, it may also hinder the development and vindication of the legal rights of women who face violence.[21]
Hence, there are consequences of using ADR in cases involving domestic violence. Firstly, the power imbalance between men and women which stems from the root of family/domestic violence. [22]For mediations to be effective there must be a roughly equal distribution of power between parties.[23] Further the unequal social and economic power of men and woman make mediation problematic, in addition to that most women are burdened with the additional disadvantage of coercion based on fear of violence.[24]Therefore, violence itself creates an extreme imbalance of power between the two parties which in turn makes these type of cases characterized by an absence of a key ingredient of effective mediation which requires the parties to have the ability to engage in consensual decision making and requires a willingness to be honest, a desire to settle the dispute and some kind of capacity to compromise. [25]Therefore, meditating in the shadow of violence may well be impossible, as when there is a woman experiencing violence involved there is a person who is inhabiting violence which challenges the victim from expressing her own needs. [26]
Secondly, the mediator’s inability to provide the abused women the type of relief they need, mediation hinders and, in some instances, precludes the women experiencing violence in particular from obtaining critical physical, financial and psychological relief.[27] The woman experiencing physical violence often needs remedies that are fundamentally inconsistent with mediation, such as the arrest of the person implicating violence or his removal from the home which can only be achieved through criminal proceedings that inherently fall outside the scope of the mediation process. [28]As the goals she seeks are protection from violence, compensation, possession of her home without the one who is implicating violence on her, and also the security of her children.[29]This can be provided to her by criminal proceedings which fall outside the scope of mediation in most jurisdictions. [30] Even though, women as a class are more economically powerful than ever before, the economic disparities between the genders still exist which gives the women a greater disadvantage while mediating finances[31]. Finally, court adjudication has a significant empowering effect upon the women facing abuse.[32] The woman having escaped and finally able to express her anger, will be going through a perfectly normal and necessary healing stage. However, mediation does not allow for separation of the woman from the abuser but rather reaching an agreement, also reconciliation, and recognition of mutual responsibility which are clearly inconsistent with the goal of stopping violence – a primary objective in these cases. [33]However, the courts will allow her to take her stand rather than her having to compromise on the position of the issue.[34] Adding to that another ADR method, arbitration where the arbitrator makes a decision based on the law and unlike mediation the ability of the victim to the violence to stand up to the other party is not in question. [35]A flaw spotted in the arbitration process is however the fact that both parties need to consent which can pose a problem in the victim getting necessary justice.[36]
In conclusion, with respect to domestic violence cases, the question is whether mediation itself would be able to give justice to the victims, considering the sensitive nature of the subject which has further social implications attached to it.
[1]United Nations, ‘What is Domestic Abuse?’ (UN) <https://www.un.org/en/coronavirus/what-is-domestic-abuse> Accessed 20 November 2020.
[2] ibid.
[3] ibid.
[4] United Nations Women, ‘Ending violence against women’ (UN Women, November 2020) <https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures> Accessed 21 November 2020.
[5] ibid.
[6] ibid.
[7] ibid.
[8] ibid.
[9] Andre R. Imbrogno, ‘Using ADR to Address Issues of Public Concern: Can ADR Become an Instrument for Social Oppression?’ [1999] 14(3) OSJDR 855.
[10] Ibid (n 4).
[11] Stephan Sonnenberg, ‘What relevance for ADR in situations of Domestic Violence’ (Harvard Negotiation & Medication Clinical Program, 5 November 2020) <http://hnmcp.law.harvard.edu/hnmcp/blog/what-relevance-for-adr-in-situations-of-domestic-violence/ >Accessed 20 November 2020.
[12] Ibid. (n 9)
[13] ibid.
[14] ibid.
[15] ibid.
[16] ibid.
[17] ibid.
[18] ibid.
[19] ibid.
[20] ibid.
[21] ibid.
[22] ibid.
[23] ibid.
[24] ibid.
[25] ibid.
[26] ibid.
[27] ibid.
[28] ibid.
[29] ibid.
[30] Ibid.
[31] ibid.
[32] ibid.
[33] ibid.
[34] Ibid.
[35] 'Domestic Violence And Family Arbitration' (Government of Ontario, May 23 2018) <https://www.attorneygeneral.jus.gov.on.ca/english/family/arbitration/domestic_violence.php> accessed 27 November 2020.
[36] Ibid.