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Part 1
Essays on Family Mediation
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Scaling Up Safety for the Sake of Self-Determination: Exploring Options to Mediation and Cases of Family Violence in Singapore
By Khoo May Ann Esther
I.Introduction
The issue of whether mediation is appropriate in cases where family violence has occurred is a question that continues to vex academics and practitioners today.1 At first glance, mediation is the ideal option for family disputes since it reduces undue acrimony in the divorce process and emphasises communication between the parties.2 However, when tensions escalate, issues of physical or emotional abuse could arise.3 The psychological effects that ensue could create power imbalances between spouses in the mediation process. This paper questions whether mediation is suited for cases where family violence has transpired. If so, what can be done within the mediation process to address any limitations that may arise?
A.Mandatory mediation
In Singapore, Section 50(3A) of the Womenās Charter4 prescribes mandatory mediation for couples that have filed for divorce, who have at least one child under 21 years of age.5 This court-based mediation process6 is conducted by a JudgeāMediator at the Child Focused Resolution Centre (āCFRCā).7 In Singapore, mandatory mediation may well have been instituted as a ātemporary expedientā8 to give couples the chance to experience the benefits of mediation. Indeed, as Chief Justice Sundaresh Menon observed, mediation helps āparents appreciate the consequences of their actions on their children, with encouraging resultsā.9
B.Family violence
However, the mediation process may not be suited for cases where spousal abuse has occurred.10 Indeed, where it is not in the interest of the child or the parent to go through the mediation process, the Court has the discretion to exempt parties from it.11 While the Womenās Charter does not elaborate on what āin the interestā of the child or parent constitutes, it is highly likely that this extends to situations where the couple has had a history of family violence.
For this paper, āfamily violenceā is defined as a pattern of coercive or controlling behaviour within an intimate relationship that changes in its dynamics.12 This definition goes beyond the definition of family violence under Section 64 of the Womenās Charter, which predominantly focuses on the physical aspect of family violence. The purpose is to acknowledge that family violence transcends physical altercations. It could include elements of sexual, psychological and emotional abuse.13
More importantly, the psychological effects of family violence on an abused spouse may spillover into the mediation process. This may create power disparities that could adversely affect the outcome of the mediation. For example, one critical finding of the International Violence Against Women Survey (āIVAWSā) was that out of all the surveyed women who had been abused by their current partners, āhalf were injured and 44.4% feared for their livesā.14 Thus, if abused spouses were required to attend mediation, this could raise safety concerns and questions regarding their ability to negotiate on a level playing field with the abuser.
As spousal abuse remains one of the most prevalent forms of family violence in Singapore,15 its potential effect on the mediation process deserves a second glance. Part I examines the benefits and detriments of mediation in cases where family violence has occurred. Part II explores how safeguards can be enhanced within the mediation process to address these limitations.
II.Mediation and family violence
A.Incompatibility of mediation with family violence cases?
When family violence enters the picture, the main contention is that an abused spouse should not be forced to go for mediation because he or she is unlikely to come to the mediation table on an equal playing field.16 At minimum, mediation brings the abused spouse face-to-face with the abuser.17 Opponents argue that the presence of an abusive spouse will inevitably create a power imbalance between the parties.18 The promise of a safe environment cannot āerase the effectsā of psychological fear.19 In extreme cases, an abuser may also intimidate the abused spouse with verbal or non-verbal threats.20 This may be difficult for a mediator to root out, especially where he or she has not been alerted to any history of domestic abuse between the spouses.21 As a result, the abused spouse may not speak up for his or her own needs.22 Further, the abused spouse may feel compelled to acquiesce to the abusive spouseās demands out of fear of future physical, psychological or financial harm.23
If this materialises during the mediation, the criticism is that any settlement that subsequently arises is ultimately untenable because it lacks willing consent on the part of the abused spouse.24 Moreover, where the abused spouse is a litigant-in-person who has not had the benefit of legal advice, the inequality between the parties may be particularly pronounced.25
Second, the mediation process may exacerbate rather than alleviate the detrimental effects of a power imbalance in the family context. For example, one observation is that mediators encourage parties not to āblame each otherā26 or dredge up past faults. However, critics argue that this characteristic of mediation is inappropriate in cases of family violence because it discounts the severity of domestic abuse.27 If a mediator skims over issues of domestic violence to focus on achieving a settlement, this sends a signal to the abused spouse that his or her safety is not important.28
B.Potential benefits of mediation
Despite these criticisms, there are valid reasons to support the continued viability of mediation. Practically, spouses in abusive relationships will have to interact with each other in the long term, especially where children are involved.29
Although opponents argue that the forward-looking nature of mediation is a disadvantage in cases of family violence,30 they overlook two scenarios. First, a mediatorās ability to help parties focus on generating options can be perceived as an advantage in helping parties anticipate and deal with any future violence that may occur.31 Second, a mediator does not necessarily have to ādiscountā or āoverlookā the history of domestic abuse. Instead, he or she may be able to reframe issues to help the abuser understand how the abused spouse may feel as a result of violence.
Moreover, mediation is still a preferred option to litigation.32 Indeed, the adversarial nature of litigation may encourage abusive spouses to deny their abusive behaviour with its point-to-point allegations and counter-claims.33 In contrast, mediation increases the likelihood of spouses responding constructively to issues of family violence, especially where they feel they are being heard and treated fairly.34
As it stands, empirical evidence only shows correlations between mandatory mediation and the danger of coercion within the mediation process.35 In contrast, other studies demonstrate that couples that went for mediation experienced a decrease in the incidence of family violence.36 Ultimately, current research studies are too complex to rely on any one generalisation or group study to affirmatively show that mediation should not be an option in cases where family violence has occurred.
III.Finding a safer haven?
Nevertheless, what can be done to address the problem of power imbalances in family violence cases?
A.Extreme end
(1)Blanket exemption
In the extreme, opponents have proposed imposing blanket exclusions on mediating all abusive relationships.37 However, a blanket prohibition has its limitations. First, āfamily violenceā is incapable of precise delimitation. Different spouses may respond differently to different inflections of āabuseā. For instance, one spouse may be traumatised by repeated snide remarks while another may remain unaffected by a one-off physical altercation.
Adopting the mantra of, āit is better to be safe rather than sorryā is undesirable. As shown above, there remain benefits to mediation even in cases of family violence. The problem would not be resolved by ruling mediation out entirely.38 This would throw the baby out with the bathwater. Ultimately, family violence may be understood as occurring on a spectrum,39 ranging from repeated abuse to one-off violence.40 Depending on the frequency and severity of the abuse,41 this may or may not raise a red flag before the mediation commences.
Instead, what is important is the need to temper the mediation process meaningfully to promote the safety of abused spouses while enhancing self-determination. The focus should be on assisting parties to mediate on a fairer playing field42 rather than denying them the opportunity of mediation.
B.Middle ground
(1)Screening process
As mentioned above, mediation in Singapore may not be mandatory in cases where it is not in the interest of the parent or child. However, it is not clear what constitutes āin the interestā or how cases are screened.
One option is to screen cases whenever allegations of abuse arise.43 This screening is done pre-mediation to filter out disputes that may not be suitable for mediation.44 The objective is to ensure that an abused spouse is not forced to face the abuser and that his or her consent to mediation is not given merely to placate the abuser.45
However, one drawback is that such a screening process lends itself to abuse. For instance, this could open up the floodgates to spouses falsely alleging abuse in order to avoid mediation.46 There may be further inaccuracies in the screening process if the Court, mediator or administrator lacks proper training in identifying spousal abuse.47 Identifying violence may well be an āart rather than a scienceā48 that cannot yield consistent outcomes.49
To resolve this problem, one practitioner has suggested that if a party is able to show that a Personal Protection Order (āPPOā) has been issued to him or her, this provides a good litmus test to segregate genuine complaints from bare allegations in Singapore.50
However, this has its difficulties. First, it presumes that abused spouses will be forthcoming about their history of abuse.51 However, according to IVAWS, violence is seldom reported in Singapore, especially if committed by an intimate partner.52 Second, many abused spouses may be in denial about domestic violence.53 In support, attachment theory posits tha...
