Judges in Kentucky Family Courts are precluded by law from ordering parties to mediate when there is a Emergency Protective Order (EPO) or Domestic Relations Order (DVO) in place between a couple. In fact, even if there is no EPO or DVO but a court has made a finding that there has been domestic violence, KRS 403.036 keeps a judge from ordering mediation unless the victim volunteers to mediate.
The reason for this is obvious, the main issue in a domestic violence situation is the exertion of control by one person of the through intimidation. Physical contact does not have to be present for there to be domestic violence and the imbalance of power that fosters this control. This protection of the victim is good and proper, and it also comes at a price. That price is often the continuation of the cycle of violence through the litigation process. When an abuser can no longer directly intimidate the other person, they inevitably resort to recalicitrance to drag out the process making it as hard as they possibly can. They usually operate on the cusp of contempt of court in order to perpetuate as much control as possible without landing in jail. The victim, finding their voice and a measure of power for the first time, sometimes makes barriers to resolution that are ultimately harmful to their own situation.
Mediation with a trained mediator presents a real prospect of redirecting this cycle and breaking through it sufficiently to get immediate issues resolved. The mediator must be adept at maintaining the mediation ground rules quite firmly while still fostering the victim and the abuser alike to engage in dialogue about issues. In this regard, my background in child and adult protective services through the Cabinet for Health and Family Services provides an advantage. In both that role and in my undergraduate degree of Family Sciences, I recieved training in a systems approach to understanding and addressing family violence.
The Next Gen Mediation that I wrote about previously is the very best chance we have at effective mediation when the two parties have been locked into a cycle of violence. That first session with each party individually at separate times provides the victim a chance to allay any remaining reluctance about the process and discover what safe guards will be put in place. It allows the abuser to discover that they will be treated with respect and their issues will be given voice while still getting clear on the boundaries of behavior and communication in that setting. Both parties operate from a position of fear though it manifests in very different ways. These fears are eased as much as possible in that sepaarate sesson.
Often, this two-step mediation process will be the first experience each party has had with resolving a conflict without the burden of powering up or giving in. I hesitate to over-sell mediation in such situations. It is very likely that the parties will slip back into that familiar pattern soon thereafter, but that is no reason to avoid the attempt. A single success in conflict resolution is the first step in setting a new pattern and it the best option to moving a divorce or separation towards resolution.