Is domestic abuse a barrier to the use of non-court dispute resolution in family matters?

Mediation and other forms of non-court dispute resolution (NCDR) have evolved over the years. Shuttle mediation (where the two clients are in separate rooms and where the mediator shuttles between the two rooms) is now a big part of a mediator’s practice, as is lawyer-assisted mediation, again with the parties and their solicitors in separate rooms with the mediator moving between the rooms. The effect of this is that even where the mediator is faced with a matter where there has been considerable domestic abuse, the parties can be kept apart with proper safeguards in place about entering and leaving the mediator’s place of business so that NCDR can still take place. In this Keynote, family partner Emma Harte considers whether domestic abuse is a barrier to the use of NCDR.

Where mediation is not considered appropriate, an early indication can be obtained through ENE (early neutral evaluation) with a senior barrister or through a private financial dispute resolution appointment/arbitration. Solicitors can either submit joint instructions to the barrister for a written early mutual evaluation or can be present at a private financial dispute resolution appointment/arbitration, all of which are suitable in cases where there has been domestic abuse. Protected and accompanied by their solicitors, clients can still resolve matters outside of court, through these processes, even where there has been a history of domestic abuse or coercive control.

How can mediation work in cases involving domestic abuse?

In cases where there has been domestic abuse either on one side or on both sides, regardless of whether it has been historical or quite recent, mediation can be successful if handled appropriately. For example, the mediator can see both parties on their own but in separate rooms. The solicitors acting for them are also on hand for advice in-between mediation sessions and the mediator can also speak to the solicitors during the mediation process either in person or online, with the consent of the couple. Where the couple has given each other and the court mutual undertakings at the outset of the matter through their solicitors and are living separately, mediation meetings and timings can be planned carefully for their coming to and leaving the mediator’s office. Mediation can help resolve matters swiftly, allowing the couple to move on. It can also save a huge amount of money on legal costs, compared to the litigation route.

When looking at NCDR, a history of domestic abuse/coercive control is no barrier, save where mediation is to take place with the clients on their own in the same room when it would not be appropriate. In fact, arguably it is far better to have NCDR to have the matters dealt with and resolved sooner rather than later so that high-conflict families can be helped as quickly as possible.

If you have any questions or concerns about mediation, domestic abuse or any other family query, please contact Emma Harte.