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Mediation: Screening for Safe Practice

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Published in Family Law June 2018, Volume 48, pages 1021 -1162). See also Family Mediation: Contemporary Issues. Marian Roberts and Maria Moscati. Chapter 16 Domestic abuse and family mediation: what can an experienced mediator tell us? (Bloomsbury Professional Law 2020).

This article addresses the importance of screening for safe practice in mediation and dispute resolution practice. It briefly describes the historical development of such screening practice, in particular in the context of family mediation and the College of Mediators Code of Practice required standards. It raises issues regarding a significant variation of practice by mediators during the intake and assessment for suitability process. It also offers a range of strategic questions for practitioners to use at the pre-mediation assessment stage.

The use of questions in screening for domestic abuse and safe practice in mediation.

Rather than attempting to cover the many wider issues regarding domestic abuse definitions and research, this brief practical skills guide will focus specifically on the use of questions in screening for safe practice in mediation.

During the early years of the development of family mediation in the UK, screening for abuse rarely if ever happens. The consensus among practitioners was that if a client referred to any history of domestic violence at the referral stage, mediation should not take place.

Throughout the 1980’s and 90’s the rise of anecdotal evidence of the extent of abuse in separating and divorcing couples, alongside significant research, increasingly identified the need for training and screening at intake assessment.

Much of this history and development is well documented elsewhere, see in particular Marian Roberts (2014 pp 270-275) which includes the following useful summary of developments: ‘National Family Mediation (NFM) (later followed by the UK College of Family Mediators) responded to these developments and to research findings (for example Pagelow, 1990; Hester and Radford, 1992, 1996; Hester and Pearson, 1993) by making an unequivocal statement of policy and recommending best practice guidelines to address the issue of domestic abuse in relation to mediation. In order to fulfil this policy, all mediators must routinely screen for domestic abuse before mediation starts, and that if mediation does take place, procedures must be in place to ensure client protection, child protection and mediator safety so that continuing attention is paid throughout mediation to the possible existence of domestic abuse.’ Roberts, M. (2014) Mediation in Family Disputes Principles of Practice  (Fourth edition). Ashgate Publishing Ltd.

It should be noted that the term domestic abuse, (DA) was substituted for the earlier term domestic violence when it became clear that DA took many other forms as well as physical violence.

The current College of Mediators, (COM), Code of Practice relating to ‘Abuse, Bullying and Harassment’ states that:

‘In all cases, mediators must seek to discover through a screening procedure whether or not there is fear of abuse or any other harm and whether or not it is alleged that any participant has been or is likely to be abusive towards another. Where abuse is alleged or suspected mediators must discuss whether any participant wishes to take part in mediation and information about available support services should be provided.

Where mediation does take place, mediators must uphold throughout the principles of voluntariness of participation, fairness and safety and must conduct the process in accordance with this section. In addition, steps must be taken to ensure the safety of all participants on arrival and departure.’ College of Mediators (2014) Code of practice for Mediators.

Despite developments in standards requiring DA training for all mediators, anecdotal evidence suggests concerning variations in practice. Some trainees have reported that having observed intake appointments, no questions had been asked by the mediator regarding DA. Without further research, it is hard to say just how common such poor practices may be. However, given mediation provider’s clear professional responsibility for safe practice how can this be? Could it be that there is now so much to cover in a Mediation Intake Assessment Meeting, (MIAM), session that, for some, it has simply slipped from focus? Alternatively, could it point to some practitioner’s personal discomfort, in raising such potentially challenging and personal issues?

Others have commented on how, when the mediator did raise questions, they were vague, unclear as to purpose and failed to include any direct reference to abuse. An example of one such comment was – ‘It was as if the mediator was tip-toeing around the issue rather than asking directly at any point,’ (see below regarding ‘soft’ versus ‘hard’ questions).

It is also known that some practitioners deal with DA screening by sending a pre-mediation questionnaire that includes a question – Has there been any domestic abuse?,  followed by a yes/no tick box, (see below for comments on why clients may not respond to such direct questions). In discussion with such practitioners they have stated that should a client tick ‘yes’, they would then follow this up with a telephone call to ask for further details. They appear not to have considered the possibility that a target of DA might have completed the yes/no tick box and/or have to respond to such a call, whilst being in the presence of a perpetrator.

On issues of safe practice and examples of questions that can be asked, I have published in more detail under the heading – Managing High Conflict and Emotion, Whatling, T. ‘Mediation Skills and Strategies. A Practical Guide’ (2012). Jessica Kingsley Publishers.

However, little seems to have been published in the UK regarding the what and how of questions that may help with screening and potential disclosure.

Questions R Us.

Questions are the bread and butter of strategic mediation practice, especially when of the ‘open-ended’ type. Ideally they are used purposefully and with strategic intent, rather than just randomly plucked out of the air.

For example when attempting to help parties make the transition from Stage 3 in the process, ‘Exploring the issues’, to Stage 4, ‘Option development’, a mediator, ideally having provided in-depth summaries to the parties, might ask a series of open-ended questions, for example: How would you like things to be different from now on? What needs to happen to make that possible? Who needs to do what differently from how things were before? Who else might be able to help with that? For much more detail on the strategic use of questioning in mediation see (Whatling 2012 pp 75 – 94).

Despite this principle, live observation of trainees, and even experienced practitioners, shows that many still struggle to make the switch from closed-ended and leading questions, to the much more effective open-ended. The latter makes respondents think, reflect and articulate beyond the simple yes/no answer.

The same strategic principles apply to DA screening questions.

It is known that perpetrators and targets of abuse may deny and/or minimise any incidents or history of abuse.

For the parties, reasons for such denial are many and varied and often associated with a complex combination of reasons, such as guilt, shame, ‘displacement’ and ‘projection’ by perpetrators, fear of reprisal, and widely differing socio/cultural definitions of what constitutes D.A.

Best practice indicates that during separate intake and assessment meetings, screening questions need to be gender-neutral and always asked of each party.

For reasons referred to above, asking direct, (hard) questions, about D.A. may lead to denial. Equally, indirect or vague, (soft) questions, may also fail to grasp the nettle. What seems to be most effective is a balance of both, starting at one end of the scale with the more general, impartial, indirect, open-ended soft questions, and progressing through to the other end with more direct and focused questions.

It will be important for mediators to find a language for these questions which is natural and comfortable to them and the respondents. It is also essential that clients are made aware that each of them will be asked the same type of questions. For the practitioner, regardless of whether they may have had disclosure or prior information from a referrer, each party is entitled to value-free and gender-neutral questions. Difficult as that impartiality mode can be when certain information is already disclosed, each client has a right to an impartial clean sheet style of questioning.

By no means would all of the following questions need to be asked, but are offered as more of a ‘pic-n-mix’ selection. Nor do they need to be asked in a linear form, since answers to some may facilitate disclosure and pave the way to different questions as to the effect of abuse on a client’s ability to take part In mediation. For example, if either party refers to only some occasional pushing and shoving and a few slaps, it is essential for a mediator not to assume they know what that means. A more concrete analysis needs to flow from such statements. For example, a strategic mediator response might be to ask such clarifying questions as – How often might such things happen during arguments? How far has the rate and severity increased over time? What was the worst ever outcome of such actions so far, e.g. in terms of any injury, bruising and/or need for medical attention? When that has happened, how would you describe the emotional effects emotionally on each of you involved? What might the effect of that be for either of you if you come to mediation?

Some examples of impartial non-leading questions:

What do you imagine it would feel like if you came to a joint mediation meeting together?

How easy or hard might it be for you to take a full part in mediation?

What, if anything, might make it difficult to speak about what you want and need from mediation, and what would help with that?

How would you describe any arguments between you during recent weeks or months?

How similar or different has that been to how it was before?

When you disagree, what does it sound like or look like, and how does it usually end up?

When you have an argument, does the same person always win, or might it go either way?

What happens if someone gets so angry that they find it hard to control their temper, and if so what effect does that have?

What sort of things might trigger such anger during an argument?

When things get heated has anything been damaged or broken?

What was the worst ever ending to such an argument?

Has anybody ever hit anyone, or been hit, and if so, what sort of injury resulted? Was it treated by a doctor? What if any sort of treatment was needed e.g. hospitalisation, X-ray, stitches etc?

Some examples of circular questions:

Might your partner feel they are frightened of you?

Might your partner feel you are frightened of them?

How comfortable would you imagine your partner might feel about sitting in the same mediation room as you?

How worried or concerned might your partner be about things you say or do in a joint meeting?

Might your partner say you always win or lose when there are disagreements?

Some examples of contextually framed questions:

The idea behind this style of questioning is that some clients may be unsure as to why they are being asked such questions i.e. as to where the mediator is ‘coming from’. Such questions may also be more sensitive to individual differences in cognitive thinking styles.

Evidence of any such uncertainty, confusion or resistance, is often indicated by evasive responses and/or non-verbal discomfort. The following examples are designed to ‘signal purpose and intent’:

We know that it can be hard for some people to come to somewhere like this and feel confident that they will be free to say what they need or want to say. How far might that be a problem for you?

Sometimes people have reasons to worry about what will happen to them if they speak honestly and openly about what has been happening and what they want from mediation. How far would you say that might be a problem for you?

When people have been in a relationship for any amount of time they can get to feel that the other always wins or gets their own way, so what’s the point in trying for change? How far would you say that has happened to either of you in your relationship?

Couples usually know well how to either get things out in the open or cover things up to keep the peace. How far do you think that might happen between you in mediation?

Every family I know argues or fights in their own special way. Some scream and shout, some throw things, some just walk off and/or sulk. What’s it like in your family?

The lists are not all-inclusive and can be added to as practitioners learn from regular reflective practice as to which questions are more or less useful in the screening process.

Neither are the questions assumed to be unique to the writer. Their evolution and development across the profession over the past twenty or more years will have inevitably been influenced by debate with colleagues and reading.

Whilst the focus here is on family mediation, the questions, with appropriate adaptation, could be equally applicable to all other forms of dispute resolution contexts. It is sometimes assumed that in the workplace or civil and commercial mediation, high conflict emotion and risk of violence are unlikely. Direct experience and significant anecdotal evidence suggest that this is not the case.

Tony Whatling has over 35 years of experience as a mediator, consultant, trainer and author. He has trained hundreds of mediators in Family, Health Care Complaints, Community, Victim offenders and Workplace Mediation contexts. Over ten years he designed and delivered training to some 1,400 Shia Imami Ismaili Muslim mediators, in Pakistan; India; Kenya; Uganda; Tanzania; Syria; Afghanistan; Portugal; UK; USA; and Canada. He has presented papers and workshops at several international conferences, and published over 40 articles on mediation. Now retired from practice, he continues to write, is a Board member of the College of Mediators, a College advisor and of the Professional Standards Committee.

He has published three books to date:
Mediation Skills and Strategies. A Practical Guide. (2012 Jessica Kingsley). Also published in Spanish.
Mediation and Dispute Resolution. Contemporary Issues and Developments. (2021 Jessica Kingsley).
Dealing With Disputes and Conflict. A Self-help Tool-kit for Resolving Arguments in Everyday Life. (2022 Routledge),