ADR and Cases of Domestic Violence

ADR and Cases of Domestic Violence The Handbook of Women, Psychology, and the Law. Edited by Andrea Barnes. San Francisco: Jossey-Bass, a Wiley imprint (www.josseybass.com) and the California School of Professional Psychology/Alliant International University, 2005. Hardcover. 448 pages. $60.

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In the 20th century, intimate violence began to be treated as an occasion for social services. Family courts sent marital violence cases to social workers who used counseling and urged reconciliation. "The problem," writes Phyllis Goldfarb, a professor at Boston College Law School in a chapter devoted to legal interventions for battered women, "was understood as one in which women provoked violence." She explains that "[w]hen framed in this manner, the appropriate intervention became one of teaching women better habits to prevent their provocations."

For decades, feminist activists and advocates for battered women worked to alter the American perception of the problem of domestic violence. Books and articles were written about the subject. Domestic abuse hotlines and shelters were established and advocacy programs were created to help victims of such abuse. Both medical schools and law schools added course work about issues pertaining to domestic violence. "These changing cultural attitudes have wrought many changes in law," writes Goldfarb.

Although this is not a book about alternative dispute resolution (ADR), Goldfarb's chapter discusses the use of mediation in the family law context, indicating that it a preferred ADR method for cases of this kind. "This preference for mediation is sparked by a desire to reduce both case congestion and levels of antagonism in matters related to the family. Indeed, a number of states require mediation in cases involving child custody and visitation," Goldfarb points out.

The use of mediation to resolve family law disputes has not been without controversy. Critics claim that the need to maintain neutrality prevents the mediator from giving abused women the support they need and, at the same time, prevents them from "signaling ... disapproval of the batterer's behavior." Mediation has many supporters, however, and they believe that this issue can be addressed through the structure of mediation. Specifically, a mediator can meet with the parties separately.

Concerns about the propriety of suing mediation to resolve conflicts involving intimate relationships have led some legislatures to regulate the area. Some jurisdictions ban mediation for such cases, whereas others give the court discretion to determine the appropriateness of mediation for the particular case.

In addition to mediation, Goldfarb discusses another means of resolving conflicts involving battered women-the Navajo practice of peacemaking. Either party to the dispute may initiate the conversation or peacemaking process. The friends and family members of the parties are included in the process, and the group, with the aide of a facilitator, creates a plan to address the problem. "This kind of model has been adopted by proponents of restorative justice programs, some of whom believe that these represent promising alternative interventions for at least a portion of the cases involving intimate violence," Goldfarb says.

The book compiles thoughtful articles on a wide range of topics about women, including the psychology of gender difference, discrimination in the workplace, sexual harassment, abortion law, depression, and human rights abuses. An interdisciplinary work, it brings together perspectives of legal scholars, psychologists and clinicians.