Domestic Violence and Collaborative Practice

By Rita Davie at HD Collaborative Law

In Spring 2018, our Waterloo Region Collaborative Practice Group (Best4All) undertook three full days of excellent training in domestic or intimate partner violence (IPV) screening for collaborative practitioners. We did this to improve our skills in identifying when IPV is present in the families we work with — and managing our process accordingly.

Domestic Violence and Collaborative Practice

Part of our training included reading literature about whether collaborative practice and mediation are appropriate when IPV is identified. Some researchers and practitioners have the opinion that it is inappropriate to engage in a collaborative approach when one spouse has been victimized in the relationship by the other spouse, either through physical violence or other means of coercive and controlling behaviour. This relationship dynamic is seen by some as not conducive to the transparent and autonomous decision-making processes inherent in the collaborative or mediation process.

One approach for collaborative practitioners would be to accept the rule that where IPV is identified, the collaborative approach must be removed as an option or terminated. In some cases, this is inevitably the best course of action, such as when it becomes clear that one spouse is unable to effectively bargain. The problem with following this rule in every instance of IPV is that when the collaborative approach or mediation is terminated, the clients are left with little option other than the adversarial legal system and litigation. Opportunities to repair or improve co-parenting relationships are often eliminated. This approach also fails to provide opportunities for experienced and competent collaborative teams to modify the process to create a more safe and balanced bargaining field for the clients affected by IPV.

Another approach, which requires more knowledge, expertise, training, sensitivity and ethical awareness, is to ensure that collaborative practitioners have competence in identifying IPV and creating processes for clients that address power imbalances and ensure that both parties are able to bargain. This may mean structuring the process creatively, which savvy collaborative practitioners are already doing even when IPV is not present. Part of this approach is to have ongoing monitoring and the ability to determine when terminating the process is the appropriate course of action.

I’m pleased to say that our Best4All family professionals, lawyers, and financial professionals are prioritizing our understanding of IPV and engaging in important discourse to help us serve clients safely and effectively, while being on the cutting edge of collaborative family law practice.