Making It Safe Women, Restorative Justice and Alternative Dispute Resolution

Provincial Association Against Family ViolenceNewfoundland and Labrador

Making it Safe Women, Restorative Justice and

Alternative Dispute Resolution

Provincial Association Against Family ViolenceNewfoundland and Labrador

This project was funded by Status of Women Canada.This handbook was printed by the Department of Justice, Government of

Newfoundland and Labrador.

Published by: Provincial Association Against Family Violence P.O. Box 221, Station C, St. John’s, Newfoundland A1C 5J9 Tel: 709-739-6759 Fax 709-739-6860 paafv@nfld.com

July, 2000

Permission is granted for non-commercial reproduction. Please acknowledge the source and send us acopy if used in another document.

Acknowledgments

Making it Safe: Women, Restorative Justice and Alternative Dispute Resolutionwas generated through Phase 2 of the project ADR: How exactly will it work forwomen and children?, sponsored by the Provincial Association Against FamilyViolence (Newfoundland and Labrador) and funded by Status of Women Canada.

The research and writing of the handbook was completed by Elaine Wychreschukand Bobbie Boland. Sub-committee members, Mary Anne Murphy and HelenMurphy (not related) provided invaluable insight and guidance. The ProjectReference Group supported the project and gave immeasurable feedback on draftcopies of the handbook.

The analysis and viewpoints expressed in other publications have been of benefit. Particularly, we credit: Keeping an Open Mind: A Look at Gender InclusiveAnalysis, Restorative Justice and Alternative Dispute Resolution, B. Boland andE. Wychreschuk, Provincial Association Against Family Violence, 1999; FamilyMediation in Canada: Implications for Women’s Equality, S.A. Goundry et al,funded by Status of Women Canada, 1998; From Restorative Justice toTransformative Justice: Discussion Paper, Law Commission of Canada, 1999; Guidelines for Gender Inclusive Analysis: An Integrated Approach toPolicy/Program Development, C. Hebert ,Women’s Policy Office, Government ofNewfoundland and Labrador 1998; Restorative Justice and Criminal JusticeReform in British Columbia - Identifying Some Preliminary Questions, Issuesand Concerns, S. A. Goundry, BC Association of Specialized Victim Assistanceand Counselling Programs, 1998; and Abused Women in Family Mediation: ANova Scotia Snapshot, Transition House Association of Nova Scotia, 2000. Our thanks to the Project Reference Group: Christine Care, Provincial Court;Terry Carlson and Randy Penney, John Howard Society; Faye Gear, UrbanAboriginal Women’s Association; Joyce Hancock, Provincial Advisory Councilon the Status of Women; Jackie Kavanagh, Victim Services; John Kennedy, YouthDiversion; Art Leonard, Community Mediation Services; Dan McGettigan,Correctional Services of Canada and Circles of Support; Wanda Lundrigan,Corrections and Community Services; Susan MacLeod, Health and CommunityServices; June McDonald, Native Friendship Centre; Jennifer Mercer and BethLacey, Provincial Strategy against Violence; Helen Murphy, ProvincialAssociation Against Family Violence; Mary Anne Murphy, Department ofFisheries and Oceans; Ron Roberts, RCMP; Michelle Smith, NF & Lab SexualAssault Crisis & Prevention Centre Inc.; Insp. Connie Snow, RNC.

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Section I: Guiding Principles and Assumptions . . . . . . . . . . . . . . . . . . . . . 7

Section II: Why Apply a Gender Inclusive Analysis? . . . . . . . . . . . . . . . . 8

Section III: Violence Against Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Participation: Voluntary or Coercive? . . . . . . . . . . . . . . . . 17Power Imbalance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Should ADR and RJ Based Programs Deal with SituationsInvolving Abuse or Violence? . . . . . . . . . . . . . . . . . . . . . . 16

Section IV: Questions for Discussion and Analysis . . . . . . . . . . . . . . . . . 18Community Involvement. . . . . . . . . . . . . . . . . . . . . . . . . . . 19Screening for Abuse and Violence . . . . . . . . . . . . . . . . . . 20Participation: Voluntary or Coercive? . . . . . . . . . . . . . . . . 21Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Power Imbalance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Legal Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Standardization of Training, Certification and Continuing Professional Development . . . . . . . . . . . . . . 24Facilitator/Mediator Accountability . . . . . . . . . . . . . . . . . 25The System to Register a Complaint about the Program . . 25Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Record-Keeping System . . . . . . . . . . . . . . . . . . . . . . . . . . 27Research, Evaluation and Monitoring . . . . . . . . . . . . . . . 28

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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Introduction

This document is written to increase awareness about the dynamics of abuse andviolence, and the ways these realities impact women participating in programsbased on Alternative Dispute Resolution and Restorative Justice. The informationand analysis will help inform policy makers’ choices in developing andimplementing programs and policies that appropriately respond to women’sdiverse needs. We suggest guiding principles, introduce Gender Inclusive Analysis,provide discussion, and pose questions that will deepen program and policyanalysis.

This work builds on Keeping an Open Mind: A look at Gender InclusiveAnalysis, Restorative Justice and Alternative Dispute Resolution published inJune 1999 by the Provincial Association Against Family Violence (PAAFV). ThePAAFV is the umbrella organization for shelters and transition houses inNewfoundland and Labrador and as such, works on promoting and protecting theinterests of women and children. The PAAFV is concerned about the justicesystem, courts, and alternatives to court because these systems impact the lives ofwomen and children in or leaving abusive or violent relationships. Women andtheir service providers’ concerns about alternatives to court are specifically basedon:

• development of policy and programs without consulting community andwomen’s advocacy groups, and without a gender inclusive analysis

? development and implementation of programs which minimize the contextof abusive and violent relationships

? introduction of programs in haste and for cost-saving purposes with theresult that women and children are put in dangerous positions and abuseand violence are decriminalized

In this document we address both processes that are considered alternatives tocourt and the thinking that greatly influence these processes. Our understanding ofAlternative Dispute Resolution and Restorative Justice is as follows:

Alternative Dispute Resolution (ADR) is a term used to describe a number ofdifferent processes for resolving disputes. “Alternative” refers to resolvingdisputes without bringing them before the court. In ADR, the people with the

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problem name the issues that need to be discussed and work at creating aresolution. They have more control over matters than if a lawyer was negotiatingfor them or if a judge was making a decision about their problem. These programsare usually associated with non-criminal types of disputes. The processes includeInterest Based Negotiation, Conciliation, Mediation, Facilitation, Arbitration andCourt Annexed ADR.

Restorative Justice (RJ) is most commonly associated with the criminal justicesystem. It is not a distinct model or system – it is sometimes described as aphilosophy and other times as a vision. In many respects it is like choosing to lookat conflict, crime and community through a particular lens - a lens that keeps inmind the needs of the victim, the community and the offender. RJ encouragesdialogue and responsibility for past behaviour while focusing on future problemsolving and an understanding of the obligations created by the offence. Restorativejustice views crime as a violation of one person by another, not simply a breakingof the law. Programs based on RJ principles can include Community JusticeForums, Sentencing Circles, Healing Circles, Victim Offender Mediation andFamily Group Conferencing. A restorative justice way of thinking can influencethe way any alternative conflict resolution program operates – whether theprogram is dealing with a dispute over money or property, the misbehaviour of ayoung person which falls short of being reported to the police, a parent/childrelationship which draws the attention of Child Welfare, or adult criminalbehaviour.

In Newfoundland and Labrador programs of this type have been in existence formany years:

• Youth Diversion• Unified Family Court Mediation Services• Community Mediation Services.

More recent programs include:• Small Claims Court Mediation• Sentencing Circles in Conne River and • Community Justice Forums in Happy Valley–Goose Bay

Alternatives to the courts are being explored partly because of complaints aboutcost and time delays. Many feel the justice system simply does not help them withtheir problems, and sometimes does more harm than good. More and more peopleare rejecting the “win-lose” approach of the courts and want to solve their

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problems without the formality, expense and unintelligible rules of the justicesystem. In criminal law, victims want a process which pays more attention to theirneeds and the harm that has been done to them, the community wants an end tounacceptable behaviour and governments are concerned about escalating costs.There is a growing interest in exploring new ways to deal with conflict.

However, we must also recognize that government does not have a regulatoryframework for these programs, and there are no common standards for training,implementation or monitoring. In this unregulated climate, someone with one dayof training can set themselves up as a mediator or facilitator. If a person is notsatisfied with the service received, avenues for making a complaint are even fewerthan those available in the justice system. Alternatives such as criminal adultdiversion and the promotion of mandatory family mediation for resolving childcustody and access, generate fear and concern that the impact of abuse andviolence as a crime and as a factor in family disputes is diminished.

This document hopes to stimulate thinking, discussion and understanding. Whilewritten for policy makers and those implementing programs, we hope it is usefulfor those considering using an ADR or RJ based program.

• Section I outlines the guiding principles and assumptions which inform ourthinking on the appropriate response to abuse and violence in programsbased on Alternative Dispute Resolution and Restorative Justice.

• Section II briefly describes gender inclusive analysis (GIA) and the benefitsof applying GIA to these programs.

• Section III highlights concerns regarding women in abusive and violentrelationships, and raises questions that inform good policy and programdevelopment.

• Section IV offers questions that encourage analysis of the design andoperation of ADR and RJ based programs in relation to the needs ofwomen. Some of these questions appear in text boxes in prior sections andothers are new. This section can be used as a workbook in policy andprogram development.

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Section I: Guiding Principles and Assumptions

The following guiding principles and assumptions reflect the values which informour thinking on the appropriate response to abuse and violence in programs basedon Alternative Dispute Resolution and Restorative Justice. We recommend theseprinciples inform all policy development and program implementation.

Recognition of Systemic Inequality:

• Women in our society have not yet reached equality with men and womenare not all the same. Women can be further disadvantaged by age, thecolour of their skin, religion, sexual orientation, race, ethnic background,disability and income. These differences must be understood and integratedinto public policy.

Features of ADR and RJ Based Programs

? Any intervention by ADR and RJ based programs dealing with abuse andviolence against women and children must ensure protection from furtherabuse and violence.

? ADR and RJ based programs must work towards empowerment of women,children and other victims. Participation must be voluntary; overt or subtlepressure to participate must not be tolerated.

? Programs dealing with criminal behaviour must respond to the victim’sneeds as she defines them. High priority must be given to the safety of thevictim and the community. It is not the victim’s responsibility to create anopportunity for the offender to restore the harm done.

Appropriate Use of ADR and RJ Based programs

? ADR processes and RJ based programs are sometimes appropriatealternatives to the court system, not because they are cheaper justice, butbecause they suit the particular circumstances of the people involved.

? ADR and RJ based programs must be fully funded and supported byappropriate complementary services. If the community, through

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Gender Inclusive Analysis: a tool andapproach that can be used to correctbiases that impact on women. Itrecognizes that to the extent that apolicy has an impact on people, it will verylikely have different impacts on womenand men because they have differentroles, expectations and life experiences.It identifies differences arising out ofthe gender division of labour, and out ofunequal access to power and resources,and assumes that these differences canbe changed. (Adapted from Boland and Wychreschuk,1999 and Hebert, 1998)

establishment of programs, is empowered to respond to crime andwrongdoing, it needs resources to accomplish this goal. Government mustremain accountable for protecting society and providing services.

? Alternative programs cannot replace the court system nor diminish the needto improve the current system. The court is the appropriate intervention insituations when there is no cooperation between the parties, where a courtruling on a case may result in the law being changed, where the controloffered by the justice system is required or where punishment by jail isrequired to show disfavour for criminal actions. Concerns about the courtsystem and the demands for improvements must be addressed.

Section II: Why Apply a Gender Inclusive Analysis?

Gender inclusive analysis offers amechanism by which to recognize andidentify assumptions made aboutwomen and their place in society.Many of these assumptions are notaccurate and must be corrected becausethey put women at a disadvantageeconomically and socially. Genderinclusive analysis ensures that theperspective of all women areincorporated into policy and programswith the aim of achieving equitableresults for both men and women. Verysimply, a gender inclusive analysis asksthat women’s needs and perspectivesbe taken into account, including theways that race, age, religion, sexual orientation, colour, ethnicity, ability/disabilityand economic status affect these needs and perspectives.

Women’s lives are marked by inequality. Major differences between women andmen persist in many areas of life including occupational status, employment,income levels, family responsibilities, education, social status, political influenceand vulnerability to violence. Differences exist among women based on their age,religion, sexual orientation, colour, race, ethnicity, ability/disability and socio-economic status. Women’s needs, perspectives and values are shaped by their

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Has the Process for Developing theProgram been Inclusive? 1. Who is involved in articulating thevalues, principles and goals of theprogram? Who is missing?

2. What processes ensure womenfrom diverse community groups arerepresented?

How Are Referrals Made to theProgram?1. Who has a part in recommending acase be dealt with by the program?Who does not?

2. Who has power to veto a casereferral? How is it done?

3. In criminal conflict, who defines whatbehaviour is considered inappropriateand subject to the program? Is it limitedto actions defined by the law ascriminal?

experiences and differ from men’s. Unfairly, men’s reality and understandingdominate public policy and are taken to be “the” human reality andunderstanding. Correcting this imbalance is the goal of gender inclusive analysis.

Women continue to encounter discrimination in the justice system - in the lawsthemselves, the procedures used and in accessing the system. They frequently seetheir experience disregarded. An illustration of this is found in court judgementson sexual assault cases, particularly with regards to whether consent was given ornot. The law operates by legal categories and if our experiences do not fit intothose categories, the protection of the law is limited. Often important factors aboutwomen’s situations are not allowed to be stated in court. For example, indecisions about custody of children, some judges will not listen to evidence aboutthe father’s abusive behaviour towards the mother. Women also report that factorslike race and disability and how these affect their circumstances are not alwaysconsidered by the courts.

These same dangers also affect alternativeprograms. Some fear these programs presenteven greater possibilities for injustice andharm to vulnerable groups because they areless open to the public and have feweraccountability structures.

As an example, Restorative Justice envisionsthe community taking significant responsibility for conducting programs. Thecreation of new positions of authority createsconcern about the participation of diversecommunity members and how their views areincluded. The dynamics of communitiesinvolve relationships of power - the existenceof dominant groups based on age, religion,colour, ability/disability, gender, race, socio-economic status, ethnicity, and sexualorientation; those that lead and those that areled. We cannot assume communities arehealthy or safe, or are concerned withcreating an equitable status for all theirresidents. Safeguards must be developed to

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How User Friendly is the Program?1. Have program materials been printed inlanguages which reflect the communitycomposition?

2. How is program information madeaccessible to those with low literacy?

3. How is the quality of interpretation servicesensured? Are they professionally trained todeliver this service?

prevent possible misuse of power created by the alternative programs.

Most Restorative Justice based programs claim a victim-centred approach.However, closer examination may reveal the offender’s needs are primary. Victimcentred means the views and experiences of victims must be evident in the design,implementation and evaluation of programs. Consultation with victims and theiradvocacy groups at the program planning stage will identify how best to servethem.

Much of the hope surrounding Alternate Dispute Resolution and RestorativeJustice concepts is based on reorienting our thinking about conflict resolution,truly listening and creating an opportunity for mutual understanding. ADR and RJbased programs share some of the same values promoted in gender inclusiveanalysis. For instance, ADR promotes the notion that people in dispute should control the definition and the resolution of their problem, the assumption beingthat participants are more likely to honor a resolution they generate than oneimposed from the outside.

To be effective, all programs muststrive to be inclusive. Theconsideration of gender anddiversity issues is essential tosound policy and programdevelopment. We have anopportunity to avoid repeating pastmistakes and to create policy andprograms sensitive to marginalizedgroups. A critical step in thisprocess is to listen to and act onthe views of all members of oursociety.

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Definitions of ViolenceViolent behaviour is characterizedby verbal or written threats;physical, emotional or sexualabuse/harassment or racialharassment by an individual orgroup which has the effect ofimpairing the health and welfare ofanother. (Conception Bay SouthSchool Board, Newfoundland andLabrador, 1996)

Violence is the threat or use offorce that injures or intimidates aperson (makes them feel afraid) ordamages property. (BC TeachersFederation, 1994)

Definitions of AbuseAbuse can include criminal actssuch as assault and sexual assaultor negligence (not washing, feedingor toileting an individual); humanrights violations (such as sexualharassment); verbal taunting;degrading, humiliating behaviour;rough handling; or isolation throughsilence. Abuse can take placeonce, or it can happen on an on-going basis. (Advocacy ResourceCentre for the Handicapped, 1990)

Section III: Violence Against Women

Not all abusive or violent behaviour is definedas a crime by our criminal justice system.Whether it is a crime or not, violence and abusehave a profound impact and are much too prevalent. “One half of all Canadian womenhave experienced at least one incident ofphysical or sexual violence since the age of16.” (Statistics Canada)

ADR and RJ based programs are beingintroduced in the context of a long history ofinsensitivity and lack of understanding in thecourts about the dynamics of abuse and violenceand power imbalances in relationships. Womenand other victims of violent crimes have beenmarginalized by a system that does not meettheir needs. Women dealing with familydisputes have felt that they and their childrenhave been put into danger by insensitive lawyersand judges. By way of example, if the abuse orviolence in a relationship is not believed orunderstood and shared custody or visiting rightsis ordered by the court, further abuse or violencecan result from this contact. Many men becomemuch more aggressive after the women havebroken free from the relationship.

Careful planning will ensure the sameinsensitivity and mistakes are not repeated inalternative programs.

A recent report stated that family mediation withan abuser can result in re-victimization if propersafeguards are not present:

“Abused women reported intimidation and re-victimization in mediationregardless of the form of abuse: physical, sexual, emotional, psychological or

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Screening for Abuse and ViolenceThe Mediator/Facilitator1.Are the mediators or facilitatorsprofessionals who are knowledgeableabout and have experience workingwith family violence?

2. What training regarding thedynamics of abusive and violentrelationships and power imbalanceshas been completed? How muchtraining? Hours, Days? Is this subjectintegrated throughout training? Is itgiven the same priority as otheraspects of the training (procedure,ethics, etc)?

3. What are the requirements forcontinuing education and ongoingprofessional development? How is thismonitored?

The Screening Tools1. How effective are the screeningtools? Do they incorporate indicatorsfor emotional, financial, psychologicalabuse and physical violence? Do theyelicit information about the degree ofintimidation and control in therelationship and not only the actualincidents of abuse? Adapted from Goundryet al 72-73

2. How much time is spent onscreening or case selection? Is thislimited by time? funds or otherresources?

3. How are screening tools evaluated?When was this last done? How often isit done?

financial. Women reported that theirmediator or conciliator minimizedemotional, psychological or financialabuse, or simply did not recognizecertain behaviours as abusive. Whenwomen brought up the fact that their ex-partner was harassing, stalking, orotherwise continuing to abuse themduring the mediation, their mediatorsdid not terminate mediation.”

(Abused Women in Family Mediation: A Nova ScotiaSnapshot, prepared in January, 2000 by the TransitionHouse Association of Nova Scotia (THANS Report) 8)

In criminal law, women’s fears aboutrestorative justice in part stem fromrecent sentence reform, particularly theuse of conditional sentences for a widerange of offences including sexualoffences, harassment, stalking and hatecrimes. Women’s advocacy groupslobbied unsuccessfully for the exclusionof “violent” offences from the reach ofthese sentences. The Federal governmentdid not impose restrictions, and in 1999the Supreme Court of Canada upheldthe use of conditional sentences forsexual assaults.

Conditional sentences mean offendersavoid jail by serving time at home undercourt imposed conditions – usually seenas easy punishment or no punishment atall. Although conditional sentences arenot based on restorative justiceprinciples (they were probablyintroduced to reduce reliance onincarceration and for cost savingreasons), their use for the above offences

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Is Participation Voluntary? 1. Is referral to the program mandatory?

2. What ensures prospective parties arenot pressured to engage in or continuewith the program?

3. What overt and subtle pressures“encourage” participation in the process?What messages come from the court,social agencies, the police, family and thecommunity?

4. What information is given to the womanleaving an abusive relationship about the pros and cons of using the alternativeprogram instead of the court? By Whom? When?

5. What support is provided to assist herto make the decision?

6. Does she have ready access to legalinformation about her rights and theimplications of using the program inrelation to these rights? When is thisinformation made available? By whom?

7. What support system is providedthroughout the process?

8. What is done to ensure participation remains voluntary? What are therepercussions of choosing to terminatemediation?

represents the decriminalization of abusive and violent behaviour against women.Consequently, women are very cautious about programs introduced to reducedemands on the criminal justice system. The need for vigilance when it comes toidentifying the needs of women who have been subject to abuse and violencecannot be overemphasized. This issue is discussed in greater detail throughout thedocument.

Participation: Voluntary or Coercive?

Although family mediation is notmandatory by law, women are oftentold it is best to try mediation beforegoing to court. This happens evenwhen they have recently left anabusive or violent relationship and areliving in a shelter for women. Womenwill likely hear this from legal aidlawyers and court staff. Even ifwomen get to the courtroom there is astrong likelihood some judges, beforeproceeding further, will adjourn thematter and “suggest” trying mediation.

The laws on child custody and accesscreate a strong pressure to be“cooperative” with the other parent.Participation in mediation has cometo represent cooperation and in manysituations is encouraged despiteknown abuse and violence in therelationship. Some judges andprofessionals believe unless there isproof of physical abuse to thechildren they suffer no harm. Theimplicit assumption – witnessing theirmother being abused does not countas harm.

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Is it Safe to Participate?

1. How does the program make it safefor her to participate? Has the immediatedanger to her, the children and all thatbelongs to her been truly revealed or hasit been minimized?

2. What measures are taken for hersafety before, during and after theprogram? Separate meetings in the caseselection process? Elimination of thepossibility of accidental meetings? Non-disclosure of her and the children’swhereabouts? Seating arrangements?Contact after completion of the process?

3. What external support and resourcesare provided? Involvement of supportpersons - advocate, health advisor? Useof legal advisor? Has adequate timebeen allowed to ask questions and reachdecisions?

4. Are mandatory minimum conditionsincorporated into the resolution ofcriminal type problems?

5. When no apparent physical threatsexist, are equally important “safety”concerns considered? For instance,does she have fears about losingcustody of her children to him or to ChildWelfare?

Women also feel internal pressure to avoid court. A woman who has left anabusive relationship and whose partner is showing remorse for his behaviour(some call it the honeymoon phase),want to believe his intentions willresult in change. She may choose “notto take him to court” in order tosupport this belief. Of course, she mayalso choose an alternative process in anattempt to defuse his escalatingviolence.

These influences mean we must bevigilant about whether participation istruly voluntary in family mediation.Women and other victims of crime facesimilar pressures in criminal matters.Clearly, thorough assessment must becompleted prior to participating inalternative programs. Likewise,choosing to terminate participation atany point must be acceptable andwithout repercussions.

Power Imbalance

As part of day-to-day life, weexperience power imbalances in ourpartner/spousal, family, friend andemployment relationships. We areconstantly shifting back and forthbetween having more or less power inrelation to those around us, with ourimmediate community and society as awhole. Many times it is not harmful orproblematic.

However, power imbalance is a major concern when power is used to control whatanother person does – when it is used to intimidate and threaten – and when itresults in abuse and violence. Power imbalance is a very important factor when a

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Power ImbalanceIn the Program Structure?1. Is the program closely associated withother systems or institutions? Church,RCMP, court ? How might this affect theparticipants?

2. Is it possible abusers who have not beenchallenged are involved with programimplementation? What kind of screeningprovides protection against their involvement?

3. How does the facilitator/mediator handlethe power imbalance between herself and theparties?

Between the Parties?1. How and when are power imbalancesbetween the parties assessed?

2. How does the program respond to unequalpower between the parties?

3. What techniques to balance power areused? Provision of legal counsel? Supportperson is present during the process?Seating Plan? Separate meetings? Provisionof Counseling? Termination of the processwhen appropriate?

person has been victimized and feels little control over what is happening to themand around them. In criminal conflict, it is critical that the process intended tocorrect the wrongdoing does not repeat the degradation and loss of controlexperienced through the original offence. This is true in circumstances involvingstrangers or people who know each other well.

Unequal power differences may not be readily obvious. In abusive or violent relationships intimidation and manipulation is often subtle. Women who tookpart in the THANS research report said:

“I had a very hard time saying“no” to him. I agreed to things Iregret. I was too scared to standup for myself. (Dartmouth)” ( 7)

“No one knows like I do what he’scapable of. And I had nevercrossed him before. He bangedhis fingers on the table. Thatbrought back too much...I brokedown. (Digby area)” (7)

“He can just look at me and scareme; it’s hard for someone who’shad a really good life tounderstand that.” (10)

Most women leaving an abusiverelationship will have a difficulttime negotiating, on their own, afair deal about children andproperty sharing. An abuser’sinfluence is enormous and thepower imbalance severe. A womanwho has been abused for years maysuffer a loss of control and feelingsof helplessness. She may be afraidto challenge him on anything. Without an understanding of the dynamics of abuseand violence in relationships, this lack of challenging may be misinterpreted as a

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willingness to compromise.

When power imbalance is recognized, many mediators claim their skills combinedwith balancing tools can help balance the unequal power between the parties.Power balancing techniques include ensuring legal counsel and /or a supportperson is present throughout the process, provision of counselling, arrangement ofthe seating plan in the mediation, using opportunities to meet separately with theparties, and maintaining the ability to terminate the process at any time.

Some are skeptical of this claim:

It defies the imagination to think of the skill required to empowera depressed wife with low self esteem who believes in traditionalsex role ideology, fears confronting her husband, and has nooccupation outside the home. Nor can the mediator significantlyimprove the wife’s psychological and emotional state.” (Goundry et al, footnote106, 41)

The effects of an abusive and violent relationship on a woman are far reaching. Policies and programs can demonstrate support to her by:

• acknowledging she is the best one to determine her safety • supporting her right to self-determination

? demonstrating a commitment to her empowerment

Should ADR and RJ Based Programs Deal with Situations InvolvingAbuse or Violence?

Women’s past experiences with courts and other social agencies raise legitimateconcerns that the same insensitive and possibly dangerous handling of situationsmay be repeated in ADR and RJ based programs.The many different kinds ofprograms do not make it easy to develop one policy and provide simple answers.For example, various programs dealing with criminal matters intervene at pre-charge, post-charge, pre-sentence and post-sentence time frames. The point ofentry raises different issues, possibilities and vulnerabilities for women who havebeen subjected to abuse or violence.

Women’s advocacy groups across the country are lobbying for the exclusion ofcases involving abuse and violence from family mediation and programs dealing

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with criminal cases. They point to the re-victimization individuals haveexperienced in these processes. They have seen these programs introduced withoutproper resources. They believe long term research is required.

? A principal recommendation of one of the few qualitative research reportson family mediation states “...if any history of physical, sexual,emotional, psychological or financial abuse comes to the attention of aconciliator, mediator, lawyer or judge, the parties should not beconsidered candidates for self-representation in less-formal justiceprocesses such as mediation.” (THANS Report 8)

? The “exceptional circumstances” provision (it allows regionalCrown Counsel to divert certain VAWIR (violence against women inrelationships) offences to alternative measures and restorative justiceprograms) should be eliminated in relation to VAWIR, sexualassault, child sexual abuse, criminal harassment, and hate-motivated offences until there is an opportunity to conduct all ofthe necessary research, analysis and evaluation of theseinitiatives and consult with all of the affected parties.” (Goundry, BC Assoc iii, 1)

? “The Canadian Association of Sexual Assault Centres is stronglyopposed to the use of ADR/RJ in cases of violence against womenincluding, but not limited to, women in violent and abusiverelationships.”(CASAC Statement on Alternative Dispute Resolution/Restorative Justice)

However, many restorative justice based programs provide services which maycomplement the criminal justice system and effectively function side by side. Thetiming of participation in the program is a significant element – as an example, avictim may choose to take part in a “reintegration” circle after the offender hasserved his jail time and before he returns to their community. Considerablepreparation is necessary, and clearly, resources and support are required. Forsome women, over time and with adequate supports, family mediation mayprovide a way to resolve difficult disputes. Is it reasonable to eliminate theseoptions totally if they prove to serve her needs? Proponents of alternativeprograms and restorative justice suggest:

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• we need new ways to deal with conflict in personal and communityrelationships

• programs need not be “instead of court” but an opportunity for participantsto make steps toward taking back personal power lost through abuse andviolence

• the experience is potentially transformative and empowering

• screening out inappropriate cases can be done with confidence and care

If and when options are made available for those who want a choice, it must be aninformed choice and voluntary in the broadest sense. In addition, we mustrecognize that women in abusive and violent relationships are participants inprograms even though they may not identify themselves. The shame, secrecy,intimidation and fear result in highly developed skills for hiding the abuse andviolence – no screening tool will be able to pick up on all cases.

Court may be appropriate for several reasons, and programs must not besubstituted where that is the more appropriate venue. Once abused women report abuse or violence (statistics suggest that only one in ten do report) they wantpublic acknowledgment of the wrongdoing and the courts provide the strongestdisapproval. Sometimes court orders provide the best option for controlling hisbehaviour – for instance, a court order restricting contact with children may workbecause the abuser fears the consequences when a court order is not honoured; anadded benefit is a more effective and efficient police response when it is notfollowed. Despite its shortcomings, court remains the first and best choice formany women who have decided to get out of an abusive or violent relationship.

Section IV: Questions for Discussion and Analysis:

This section provides questions to stimulate discussion about the inclusion ofsituations involving abusive and violent relationships in ADR and RJ basedprograms.

Some of these appeared in the preceding sections along with a discussion on thetopic. Although of equal importance, other questions do not appear elsewhere inthis document because they are self-explanatory.

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Inclusive? 1. Who is involved in articulating thevalues, principles and goals of theprogram? Who is missing?

2. What processes ensure womenfrom diverse community groups arerepresented?

How Are Referrals Made?1. Who has a part in recommending acase be dealt with by the program? Whodoes not?

2. Who has power to veto a casereferral? How is it done?

3. In criminal conflict, who defines whatbehaviour is considered inappropriateand subject to the program? Is it limitedto actions defined by the law ascriminal?

User Friendly?1. Have program materials been printedin languages which reflect thecommunity composition?

2. How is program information madeaccessible to those with low literacy?

3. How is the quality of interpretationservices ensured? Are theyprofessionally trained to deliver thisservice?

Community Involvement

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The Mediator/Facilitator1. Are the mediators or facilitatorsprofessionals who are knowledgeable aboutand have experience working with familyviolence?

2. What training regarding the dynamics ofabusive and violent relationships and powerimbalances has been completed? How muchtraining? Hours, Days? Is this subjectintegrated throughout training? Is it given thesame priority as other aspects of the training(procedure, ethics, etc)?

3. What are the requirements for continuingeducation and ongoing professionaldevelopment? How is this monitored?

The Screening Tools1. How effective are the screening tools? Dothey incorporate indicators for emotional,financial, psychological abuse and physicalviolence? Do they elicit information about thedegree of intimidation and control in therelationship and not only the actual incidentsof abuse?(Adapted from Goundry et al 72-73)

2. How much time is spent on screening orcase selection? Is this limited by time? Fundsor other resources?

3. How are screening tools evaluated? Whenwas this last done? How often is it done?

Screening for Abuse and Violence

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1. Is referral to the program mandatory?

2. What ensures prospective parties are notpressured to engage in or continue with theprogram?

3. What overt and subtle pressures“encourage” participation in the process?What messages come from the court, socialagencies , the police, family and thecommunity?

4. What information is given to the womanleaving an abusive relationship about the prosand cons of using the alternative programinstead of the court? By Whom? When?

5. What support is provided to assist her tomake the decision?

6. Does she have ready access to legalinformation about her rights and theimplications of using the program in relation tothese rights? When is this information madeavailable? By whom?

7. What support system is providedthroughout the process?

8. What is done to ensure participation remains voluntary? What are therepercussions for choosing to terminatemediation?

Participation: Voluntary or Coercive?

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1. How does the program make it safe forher to participate? Has the immediatedanger to her, the children and all thatbelongs to her been truly revealed or has itbeen minimized?

2. What measures are taken for her safetybefore, during and after the program?Separate meetings in the case selectionprocess? Elimination of the possibility ofaccidental meetings? Non-disclosure ofher and the children’s whereabouts?Seating arrangements? Contact aftercompletion of the process?

3. What external support and resourcesare provided? Involvement of supportpersons - advocate, health advisor? Useof legal advisor? Has adequate time beenallowed to ask questions and reachdecisions?

4 Are mandatory minimum conditionsincorporated into the resolution of criminal-type problems?

5. When no apparent physical threatsexist, are other equally important “safety”concerns considered? For instance, doesshe have fears about losing custody of herchildren to him or to Child Welfare?

Safety

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In the Program Structure?1. Is the program closely associated withother systems or institutions? Church, RCMP,court? How might this affect the participants?

2. Is it possible abusers who have not beenchallenged are involved with programimplementation? What kind of screeningprovides protection against their involvement?

3. How does the facilitator/mediator handlethe power imbalance between herself and theparties?

Between the Parties?1. How and when are power imbalancesbetween the parties assessed?

2. How does the program respond to unequalpower between the parties?

3. What techniques to balance power areused? Provision of legal counsel? Ensuresupport person is present during the process?Seating Plan? Separate Meetings? Provisionof Counseling? Termination of the processwhen appropriate?

Power Imbalance

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For Family Mediation1. Do parties have access to legal counsel?Who pays for it?

2. Is independent legal advice available priorto, during and after the mediated agreementhas been finalized?

3. Are legal and accounting /financialprofessionals available for consultation? Towhom and on what terms?

For Victims of Criminal-Type Behaviour1. How does the program ensure victims haveaccess to adequate legal advice regarding theimplications of using the program instead ofthe criminal justice system?

1. Are the mediators or facilitatorsprofessionals who are knowledgeable aboutand have experience working with familyviolence?

2. What training have the mediators orfacilitators received regarding the dynamics ofviolent relationships and power imbalances?How much training? Hours, Days? Was thissubject integrated throughout the mediation orfacilitation training? Was it given the samepriority as other aspects of the training(procedure, ethics, etc.)?

3. What are the requirements for continuingeducation and ongoing professionaldevelopment? How is this monitored?

Legal Representation

Standardization of Training, Certificationand ContinuingProfessional Development

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Family Disputes1. Is the mediator associated with the criminaljustice system? The church? How might theassociation affect people who are using theprogram?

2. What is the personal and employmenthistory of the mediator? How might thisinfluence the handling of the case?

3. What mechanisms are in place to allowchallenges to mediator bias?

4. Does the program have an audit/review onan annual basis to determine the fairness ofagreements?

5. Does the mediator assume responsibilityfor the safety of women and children onceabuse is disclosed?

Criminal-Type Conflict:1. Is the mediator/facilitator associated withthe criminal justice system? The church? Howmight the association affect people who areusing the program?

2. What is the personal and employmenthistory of the mediator/facilitator? How mightthis influence the handling of the case?

3. What mechanisms are in place to allowchallenges to mediator/facilitator bias?

1. What formal complaint mechanisms allowparties to register difficulties encountered withthe program or its staff during the process?

Facilitator/MediatorAccountability

The System to Register aComplaint about theProgram

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Family Disputes1. What are parties told about the limits ofconfidentiality? When are they informedabout this?

2. What information is given to parties aboutpossible consequences of disclosure of factsin the mediation process? Who gives thisinformation? When?

3. What information is given to parties abouthow information revealed in mediation mightbe used if the mediation terminates without anagreement? In subsequent courtproceedings?

4. How is full disclosure of financialstatements ensured?

Criminal-Type Conflict1. What are both the victim and offender toldabout the limits of confidentiality? When arethey informed about this?

2. Are the limits of confidentiality discussedwith all participants involved (eg. all those in asentence circle)?

3. What information is given to the victimabout the possible consequences ofdisclosure of facts to the offender and othersinvolved? Who gives her this information?

4. What information about the implications ofdisclosure of facts and admissions ofresponsibility are given to the offender?

Confidentiality

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What information should be included in therecord-keeping system?

1. issues in dispute? 2. length of time to conclude the process?

3. number of meetings?

4. cost to the parties?

5. substance of the agreements?

6. number of clients screened out of process,and why?

7. number of unsuccessful attempts atprocess, and why?

8. return rate to the process?

9. number of parties who ultimately end up incourt?

10. whether lawyers were involved, and if provided by legal aid?

11. who uses the process?

12. other information relevant to particularprogram?

(Adapted from Goundry et al, 71)

Record-Keeping System

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1. How is the program monitored andevaluated?

2. What is the measure of success? Are bothprocess and outcomes considered?

3. Will records kept add to our understandingof the issues of concern to women?

Research, Evaluation andMonitoring

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