Should domestic violence survivors and their abusers ever undergo family court mediation together? This is one of the thorniest debates in the ADR community. This week, the Montana Legislature weighed in with a qualified “yes.” The legislature passed a bill to revise state mediation laws on domestic violence. The bill, HB 555, enables survivors to give informed consent to mediation, while requiring specialized training for eligible mediators. This reverses the state’s prior understanding, in which a suspicion of any past abuse between parties, whether physical, sexual, or emotional, created an “absolute bar” to any court-ordered mediation. The history of the Montana mediation rules captures the evolution of thought on this topic, from rule creation to court re-interpretation to legislative refinement.
The original Montana provisions for family court mediation, enacted in 1993, attempted to shield abuse survivors from attending mediation with their abusers. This reflected a national focus on the issue at the time. Section 40-4-301 of the Montana Code Annotated allowed courts to require any parties to participate in family law mediation. However, it made an exception for domestic violence. The court could not authorize mediation if it had “reason to suspect” that either party or their child had been “physically, sexually, or emotionally abused by the other party.” The provision was intended to shield survivors from mandatory mediation. However, its interpretation varied from court to court.
Rule interpretation came to a head in Hendershott v. Westphal, a family case which was appealed to the Supreme Court of Montana in 2011. Ms. Hendershott appealed the district court’s order that any disputes in her parenting plan must be mediated with Mr. Westphal, who she said had physically and emotionally abused her. The court had received conflicting assessments from several doctors, but required mediation on the basis of one who had found no evidence of abuse.
In its reversal, the Supreme Court cited authorities saying that domestic violence undermines the basic goals of mediation and creates unequal bargaining power. The court concluded that the plain language and legislative intent of the rule indicated “an absolute bar to mediation where the court finds a reason to suspect abuse.” All suspected survivors of physical, sexual, or emotional abuse were now to be excluded from family court mediation.
The Supreme Court’s ruling raised concerns for Professor Eduardo Capulong, director of the University of Montana School of Law Mediation Clinic. (Many thanks to Professor Capulong, who agreed to be interviewed for this article.) He believes that such absolute policies imply “victims are helpless so we’re going to pass mandatory policies to help them.” However, in his own scholarship he found empirical data suggesting such policies have not benefited abuse survivors. He believed that survivors should still have a choice to participate in mediation. As a result, he worked with the Mediation Clinic to draft the new bill.
HB 555 makes significant changes to Section 40-4-301. Courts must still consider any “reason to suspect” that one party abused the other, and may not require mediation for such parties. However, the parties may still have mediation if they each provide “written, informed consent.” Informed consent is defined as “an educated, competent, and voluntary choice to enter into mediation.” Furthermore, mediators for these cases must now be “trained in mediating domestic violence cases.” Previously, mediators could exclude attorneys from all cases, but now these cases are exempt and domestic violence survivors may also choose to include additional advocates and support.
In preparing HB 555, Capulong and his clinic brought together a diverse coalition of stakeholders. Participants included the Montana Judge’s Association, the State Bar of Montana, the Montana Coalition Against Domestic and Sexual Violence, the Montana Mediation Association, Concerned Women of America, and members of Ms. Hendershott’s family. Capulong notes that it’s uncommon to find mediators, domestic violence advocates, and judges working together on one issue.
Members of the Mediation Clinic met with their coalition and legislators. Ultimately Rep. Ellie Hill, a legislator from Missoula, introduced the bill. At this writing, the bill has passed the Montana House and Senate, and awaits Governor Bullock’s signature.
At every stage of Montana’s rule evolution, each change appears to be motivated by a strong desire to act in the best interest of abuse survivors. However, the two approaches taken are near-polar opposites. An absolute bar like the Supreme Court’s interpretation assumes that the best way to help survivors is to protect them from themselves, their abusers, and the mediation process. The court treats survivors as a special type of litigant in order to shield them from further victimization. In contrast, an opt-in provision like HB 555 stresses the importance of allowing survivors the freedom to make choices, including some that outsiders may disagree with. The enabling impulse reflected in HB 555 assumes that the survivors’ own choices should still be paramount.