The Role of Mediation in Gender-Based Violence Cases

by, Abi Ajibolade RP

Executive Director, The Redwood…For Women and Children Fleeing Abuse

The Redwood provides programs and services to support women and children to live and thrive without abuse, homelessness and poverty. We work for social change through learning, collaboration and advocacy, and envision a socially just world where systems of oppression are eliminated and women and children are free from all forms of violence.

As advocates working with women to end GBV, we hold deeply our values of putting women and children at the centre of all that we are and do. We must continually examine power as it impacts decision-making within the organization and ensure that we embody our opposition to oppression and marginalization that women may encounter in a complex and often punitive system. We are first and foremost dedicated to our commitment to women-centered and trauma informed practice which will work toward reducing harm and supporting healing and self-determination.

One tool that we use to ensure that we work in partnership with the woman while optimizing her safety, is our SARM (Safety Assessment and Risk Management) planning tool. We are constantly introducing new ways that we can implement our SARM procedures to enable empowerment of the client while addressing her particular safety needs and hurdles while interacting with the greater system.

According to Statistic Canada, only 38% of women experiencing abuse connect with social services, such as crisis lines, shelter, community centres, counsellors, women’s centres and support groups. Less than one-third of women report their experiences of intimate partner violence to the police. Based on the latest statistics from the MCSS, last year approximately 51,700 crisis calls were received on crisis lines for women, in Ontario alone.

In reflection of the presenting concerns that lead many women to limit their interaction with the criminal justice and child protective services, we have recently been in a stage of re-assessing our SARM and focus on advocacy to incorporate alternative approaches to women’s involvement with these systems. A major factor that has propelled us to change our strategy is hearing women’s wariness over the years, to disclose their abuse experiences to shelters, the legal system, law enforcement or other institutions and organizations. And these statistics reflect this.  There is an underlying sentiment of having little confidence and trust in the system, particularly from racialized and indigenous women.  Women hesitate to involve the police and are reluctant to go through the traditional court process because it would reinforce negative stereotypes, and only add to existing high incarceration rates.  Distrust in the legal process is also contributed to by a history of unjust apprehension of children by child protective services.  These fears are very often the reasons why some women feel like they have no other choice but to remain in an abusive relationship.

One of the discussions we have had over the recent years has been the favoring of alternative routes to the court system such as mediation. There are a multitude of reasons why a survivor of GBV may choose to access such an alternative in cases of abuse and child protection including the great stress placed on both parties that may exacerbate the abuser’s risk for re-victimization of the woman.

However, there appears to be a consensus within the Violence Against Women sector that mediation is not suited for domestic violence situations.  The reasons which make mediation contentious are important issues.  However, we need to also consider the larger context by asking ourselves, “do traditional court procedures provide any greater protection?”  The answer is no.

Mediation may actually be better, or no worse than the alternatives. When we take a look at the main critiques of mediation in terms of where it falls short in protecting the interest of the vulnerable, it becomes apparent that many of these reasons also stand true for the courts system; firstly, the lack of understanding regarding the dynamics of intimate partner violence and secondly, the power imbalances between the parties allowing the abuser to continue to go on to intimidate and manipulate. In fact, it can be argued that professionals that choose to mediate cases involving domestic violence have extensive education in the dynamics and intricacies present when working with survivors of GBV and their abusers, which is not expected of professionals in the court system. Furthermore, there is less likelihood that the abuser can exercise power imbalance apparent in many cases including where the abuser can employ high-level attorneys that are inaccessible to the woman and are used to intimidate the survivor or orchestrate a scene where she is discredited as unstable, unfit or deceitful. This can be wholly avoided when the route of mediation is available to the woman.

At the heart of the matter is the importance of practicing from a trauma informed client-centred approach; one, which acknowledges a woman’s life experiences, and respects and supports their right to choose the direction of their own lives. Automatically excluding victims of violence from mediation falsely assumes that all victims are not capable of promoting their interests and those of their children. Such an assumption can be disempowering in and of itself. Ultimately, this stands at the centre of the issue, so we need to ask ourselves, “who should be making such decisions when we rule out mediation?”