DOMESTIC VIOLENCE AND EMPOWERMENT IN CUSTODY AND VISITATION CASES

DOMESTIC VIOLENCE AND EMPOWERMENT IN CUSTODY AND VISITATION CASES

Lisa Newmark, Adele Harrell, and Peter Salem

This article reports a State Justice Institute funded research project attempting to demonstrate the di@erence between mediation and evaluation disputes over child custo+, and visitation where domestic violence is involved. The researchers attempted to develop samples at two courts-Hennepin County Circuit Court in Minneapolis, Minnesota, and Mulinomah County Circuit Court in Portland, Oregon.

The purpose of this article is to present information that will assist courts and court-connected services in addressing the challenging issues presented by custody and visitation disputes involving domestic abuse. Information is presented on the history of domestic abuse, parties’ perceptions of empowerment, and other key factors as reported by men and women entering family court services for resolution of their disputes.

Authors’ Note: This article was developed under a grantfrom the State Justice Institute. The points of view expressed are those of the authors and do not necessarily represent the oflcial position orpolicies of the State Justice Institute. This project required the cooperation of many people. We would especially like to thunk Multnomah County Family Court judges Stephen Herrell and Elizabeth Welch and Hennepin County Family Court judges Steven Lange and Charles Portet: Special thank go to Rose Mary Lyons of the Department of Family Services in Portland and Doneldon Dennis of the Family Court Services in Minneapolis and their respective stafls for the invaluable assistance they provided to this project. Research assistants Anne Crane, Pamela Nelson-Grotrian, and Molly Roston played a crucial role in this study, and we appreciate their contributions. Our project was guided by an Advisory Board that provided input at the start of the project and assisted at key points in the project. Members were the Honorable Susan Snow of the Cook County Circuit Court; Russell Schoeneman, Director of Maricopa County Concili- ation Services; Sheila Kuehl, Director of the Southern California Women’s Law Center; Daniel Saunders, associate professor at the University of Michigan; and David Lev, President of the National Council for Childwnk Rights. Linda Gininer and Diane Bryner; cochairs of AFCC’s Domestic Violence and Mediation Committees also provided valuable input. We thank them all. Daina Farthing-Capowich served as the project monitor at the State Justice Institute. Her commitment to the project, responsiveness to necessary changes, and interest in the results was evident throughout. Ann Milne, Executive Director of the Association of Family and Conciliation Courts, initiated this project and oversaw it from concept to conclusion. At the Urban Institute, Bill Adams played a major role in the data analysis. Our heartfelt thank is extended to the women and men who participated in this stu&.

FAMILY AND CONCILIATION COURTS REVIEW, Vol. 33 No. 1, January 1995 30-62 0 1995 Sage Publications, hc.

30

Newmark et al. /DOMESTIC VIOLENCE & EMPOWERMENT 31

The debate over mediation of cases involving domestic abuse is heated and complex. Advocates for abused women argue that mediation is inherently unfair, potentially unsafe, and suggest that effective adversarial processes better serve their clients (Hart, 1990). Mediation proponents contend that in some cases mediation can be empowering and is more effective than traditional court procedures (Erickson & McKnight, 1990). Others argue that mediation may be helpful to victims of domestic abuse, while cautioning that such cases must be treated on a case-by-case basis and with extreme care (Girdner, 1990; Marthaler, 1989).

Advocates for abused women have opposed mediation for over a decade. At first, criticisms focused on parties who were referred to mediation as a result of a report of domestic abuse or restraining order (Lerman, 1984). Cases were often referred by the police or district attorney to a community mediation center staffed by volunteer mediators. Mediation of these cases was criticized for advocating reconciliation of the parties and trivializing the crime of abuse (Lerman, 1984).

The controversy over the use of mediation in custody and visitation disputes involving domestic violence appears to parallel the trend of court- connected programs adding mediation to the more traditional services of custody evaluation and reconciliation counseling and the dramatic growth of mandatory mediation. Jurisdictions in approximately 33 states now mandate the use of mediation in contested custody and visitation disputes.'

There have been extensive and widespread efforts to reconcile these disparate view. In 1989, the Association of Family and Conciliation Courts (AFCC) sponsored the first international symposium on the issue of mediation and domestic abuse. In 1990-1991, the State Justice Institute supported a series of discussions between recognized leaders and experts in the fields of mediation and battered women's advocacy, sponsored by the Maine Mediation Program. Most recently, the Academy of Family Mediators and the Ontario Association for Family Mediation brought together mediators and advocates from across North America to further examine the issues of mediation in cases of domestic abuse. On the local level, representatives of mediation and domestic abuse programs in many regions have also met to work on policies and procedures in their own jurisdictions.

THE CASE AGAINST MEDIATION

Advocates for abused women are highly critical of mediation in custody and visitation cases in which domestic abuse has occurred. They contend that a process that places a victim and abuser in the same room to negotiate disputed issues, often without legal counsel present, is inappropriate regard-

32 FAMILY AND CONCLIATION COURTS REVIEW

less of the skill level of the mediator (Beer & Stief, 1985; Cohen, 1982; Ellis, 1989; Hart, 1984,1990; Lefcourt, 1984; krman, Kuehl, & Brygger, 1989; Pagelow 1990; Schulman & Woods, 1983; Sun & Woods, 1989; Woods, 1985).

Victims of repeated abuse learn through their experience to fear future harm from the abuser and as aresult may feel less empowered to express their wishes during mediation. Domestic abuse creates a dynamic in which the victim is likely to be intimidated, fearful, and afraid to confront or challenge the wishes of the abuser.

Although men and women are equally likely to report being victims of domestic violence when it is measured by specific acts on the Conflict Tactics Scale, such as hitting, shoving, and so on (Straus, 1979), advocates argue that the negative effects of abuse on feelings of empowerment are likely to be more pronounced among women than among men. In this society, men have social and economic advantages in earnings, employment, and occupational status that may contribute to a female victim’s economic dependence on the abuser and reduce her resources for coping with the crisis and providing for the children. Female victims may be more fearful of physical injury than male victims and thus more intimidated. Research shows that women are more likely than men to be severely injured in domestic assaults and suffer debilitating psychological symptoms as a result of domestic violence (Frieze & Browne, 1989; Straus & Gelles, 1986).

Furthermore, because victims often fail to report the abuse, it may remain hidden from the mediator.

THE CASE FOR MEDIATION

Proponents of mediation include researchers and practitioners who believe that mediation offers clear advantages in custody and visitation disputes. Advantages of mediation reported in earlier studies include empowering negotiating parties, giving parties the opportunity to air grievances that are seldom addressed in litigation, helping parents focus on the needs of the children, limiting damage to parents’ relationships, and developing agreements that are more satisfying to the parties and fair and acceptable over time (Brown, 1988; Camplair & Stolberg, 1990; Haynes, 1988; Kelly, 1989; Pearson & Thoennes, 1988; Trombetta, 1982). However, these findings refer to the broad spectrum of cases without focusing on those with a history of domestic abuse. Research on abuse cases per se is just beginning.

Mediation of custody and visitation disputes may be superior to the adversarial process for several reasons. Compared to the traditional divorce

Newmark et al. / DOMESTIC VIOLENCE & EMPOWERMENT 33

process, researchers and commentators posit that mediation may be more likely to result in greater empowerment for the victim, areferral of the batterer to treatment or anger management programs, and an opportunity to end the violence (Bethel & Singer, 1982; Chandler, 1990; Corcoran & Melamed, 1990; Erickson & McKnight, 1990; Marthaler, 1989; Yellot, 1990). Media- tors may be more likely than attorneys to identify abuse, may have better training in domestic violence issues, and may be in a better position to handle intimidation in the dispute resolution process (Keilitz, Daley, & Hanson, 1992).

REFlRAMING THE ISSUE

Whereas the debate focuses on the appropriateness of mediation, the same concerns of safety, empowerment, and fairness frequently arise in traditional court processes. Courts rarely provide separate and secure facilities for victims, and attorney-assisted negotiations may not address power imbal- ances, as when attorneys lack training or expertise in domestic violence dynamics.

Importantly, the label “mediation” represents a variety of practices. In some jurisdictions, the parties must reach an agreement or the mediator makes a recommendation to the court. In others, mediation is confidential and parties may be accompanied by legal counsel or an advocate. Mediation may be conducted in a variety of formats: by telephone, separate sessions, or with each party in a separate room and the mediator shuttling between them. Some custody evaluations strongly resemble mediation, consisting of joint sessions in which parents are encouraged to reach a settlement prior to a recommendation by the evaluator. Thus it is critical to focus on the nature of the process rather than the name.

Research on the issue of mediation and domestic violence has been limited and evidence in support of each side of the debate is largely anecdotal. When initially undertaken, this study proposed to compare the use of mediation and custody evaluation procedures in custody and visitation disputes involving domestic abuse in Portland, Oregon, and Minneapolis, Minnesota. Partici- pants completed a brief screening questionnaire, and individuals who met the study’s criteria for domestic abuse were asked to consent to random assignment to either mediation or a custody evaluation. The study was revised because so few parties in the Portland site were willing to forgo mediation for assignment to the custody evaluation group, and changes in court policy in Minneapolis reduced the number of cases eligible for the study.

Reasons why participants in Portland refused to bypass mediation and be assigned to the custody evaluation group must be left to speculation. Because

34 FAMILY AND CONCILIATION COURTS REVIEW

mediation is an established and popular court service in Portland, endorsed by the bench and the bar, those approached to participate in the project may not have understood that an exception had been made to the mediation requirement for research purposes and may have believed they were still required to mediate. Participants may have been reluctant to relinquish participation in a mediation process that might provide resolution, or they may have worried that custody evaluation would take longer. However, when the alternative processes were explained by research staff, parties may have simply preferred mediation to custody evaluation.

As a result, the scope of the project was modified to examine the characteristics of those who completed the screening instrument. The results provide preliminary evidence on the extent to which men and women entering family court services for resolution of a custody or visitation dispute have experienced abuse and whether a history of violence is associated with a diminished sense of empowerment in dealing with the other parent and the court system. The analysis also provides indications of which cases may need special handling, the nature of gender differences in perceived empowerment, and the extent to which a history of domestic violence is associated with perceived decision-making power and fear of future physical harm.

METHOD

This research was conducted in the family court service agencies of the Multnomah County, Oregon (Portland) and Hennepin County, Minnesota (Minneapolis) family courts from February to June 1993. These agencies provide mediation and evaluation services for active family court cases of various types (e.g., divorce, paternity, postdecree) in which custody or visitation is under dispute. Mediation services are also provided to self- referred cases. Family Court Services (FCS) in Minneapolis has a profes- sional staff of 24 counselors, a child psychologist, a case aiddintake worker, three unit supervisors, and a director. FCS provided mediation and evaluation services for 2,053 cases in 1992. The Department of Family Services (DFS) in Portland served 1,396 mediation and evaluation cases in 1992. The program staff includes five counselors and a director.

SAMPLE RECRUITMENT

The research sample was recruited from parents who were disputing custody andlor visitation and who were court ordered for mediation or evaluation services. Some clients in the sample may have received these


services before, such as those with postdecree motions who had received dispute resolution services during the divorce process; others were first-time clients.

In Portland, most new clients reported to DFS on Wednesdays for group orientation. Upon registration at the intake desk prior to orientation, clients were asked to complete a research consent form and a questionnaire. A research assistant explained the study and offered to answer questions. An estimated 75% to 85% completed the forms.

In Minneapolis, the receptionist at the FCS intake desk distributed the consent form and intake questionnaire to clients as they arrived at the FCS offices. Due to staff turnover, the forms were handed out relatively infre- quently, and it was not possible to determine what proportion of thosereferred for services completed research questionnaires.

Respondents were assured that questionnaire completion was voluntary, that confidentiality would be protected, and that their responses would not affect how their case was handled by the court.

A total of 422 individuals representing 293 families completed the questionnaires. Both parents provided data in 129 families (258 individuals), with the remaining 164 individuals split nearly evenly between mothers and fathers from different families (81 women and 83 men). This represents a total of 210 women and 212 men. Because 84% of the respondents were from Portland and 82% of these cases were referred for mediation services, there was an insufficient number of cases from Minneapolis and an insufficient number of evaluation cases to conduct separate analyses by site and type of referral.

THE QUESTIONNAIRE

Separate versions of the questionnaire for mothers and fathers were used but are identical in content and differ only in gender-specific wording (e.g., “he” is substituted for “she” when referring to the other parent in the mothers’ form, and vice versa). The content and format of this questionnaire were based in part on various measures already in use, including the Conflict Tactics Scale (Straw, 1979), the Rocedural Justice Scale (Roehl, 1988), the Marital Power and Decision-Making Scale (Blood & Wolfe, 1960), and mediation screening instruments used by court mediators in Hawaii and Maricopa County, Arizona (Phoenix).

ANALYSIS PROCEDURES

The data were analyzed separately by gender to identify patterns of findings for men and women. The results for women are presented first,

36 FAMILY AND CONCLIATION COURTS REVIEW

followed by the men’s findings. For each gender, descriptive statistics on responses to questionnaire items appear first. These are followed by within- gender comparisons of respondents who reported abuse with those who did not; chi-square tests were used to identify significant differences. Based on correlational analyses among sets of questionnaire items, scales were then created to combine the items into summary measures of abuse, empowerment, decision-making power, and types of disputes. The scales were constructed by taking the average of the component items to adjust for occasional missing data across respondents. Only scales found to have acceptable reliability in terms of internal consistency (Cronbach’s alpha) are reported. Abused and nonabused individuals’ scale scores are compared through t tests for mean differences.

Multivariate models of the relationship of empowerment and perceived risk of harm to abuse, decision-making power, and types of disputes as measured by these scales were tested for each gender using general linear models. Tests of significance are reported at three levels: p < .lo, p < .05, and p c .01. Although some hypotheses were directional, for example, that abused women would perceive less empowerment than women who had not been abused, two-tailed tests are used to conservatively assess the possibility that the reverse of the predicted relationship was in fact observed.

The sample contains 129 pairs of men and women from the same families, and 83 men and 81 women whose partners were not included in the sample. Because the men and women from the same families share certain characteristics (such as length of the relationship, type of court case, number of children, and so on), comparing the entire sample of men to the entire sample of women risks confounding gender differences with other case characteristics. For this reason, cross-gender comparisons are made using the subset of men and women from the same families in paired-sample t tests for mean differences in scale scores to allow differences to be attributed to gender and not to other case characteristics.

RESULTS FOR WOMEN

HISTORY OF ABUSE

Because this study was designed to address questions around court services provided to cases with a history of domestic abuse, the first question to examine must be whether the sample we obtained did, in fact, report abuse. As measured in the questionnaire, 80% of the women and 72% of the men reported being abused. The questionnaire measured four

Newmark et aI. /DOMESTIC VIOLENCE & EMPOWERMENT 37

types of abuse: intimidation through threats, stalking, or telephone harass- ment; physical abuse such as slapping, grabbing, shoving, kicking, or punching; severe abuse by beating or choking; and use of a weapon to threaten or injure.

For each type of abuse, respondents were asked

1. whether the other parent had ever perpetrated these acts on the reporting parent

2. the frequency with which this abuse had occurred within the 6 months prior to coming to family court services (never, once, twice or more),

3. the frequency with which this abuse had occurred prior to the last 6 months (never, once, twice or more).

(yedno),

Table 1 presents the findings for women’s reports of whether their partners had ever committed each of these acts. Intimidation was most commonly reported, followed by acts of physical abuse, severe physical abuse, and use of a weapon. Each of these behaviors was reported at a rather substantial rate, as shown in Table 1.

Table 2 shows the frequency with which each type of abuse occurred in the last 6 months and prior to that time (a period likely to be longer than 6 months in most cases). Intimidation was as likely to occur in the past 6 months as earlier. However, the three types of physical violence (abuse, severe abuse, and use of weapon) occurred more often prior to the last 6 months than during the past 6 months. Thus the type of abuse experienced in the past 6 months by women entering family court services was much more likely to be intimidation than any type of physical abuse.

Several scales were created to combine reports of the four different types of abuse and provide summary measures of the range and frequency of abusive behavior:2

Occurrence of abuse is the average number of types of abuse reported according to a yeslno format. Scale scores range from 0 to 1. A scale score of 0 indicates none of the four types of abuse had ever occurred, a score of 1 indicates all four had occurred, and a score of SO represents the occurrence of two types of abuse. Other scores represent intermediate points on the continuum. Scale reliability was adequate (Cronbach’s alpha = 68).

Fxquency of abuse is the average of the frequency reported for each of the four types of abuse across both the last 6 months and prior to that time. The component items were scored so that a response of never equals 0, once equals 1, and twice or more equals 2. Scale scores range from 0 to 2. A scale score of 0 indicates none of the abusive behaviors had ever occurred at any time, a score of 2 indicates they had all occurred at the highest level for both time periods, and other scores represent intermediate points along this continuum. Scale reliability was adequate (Cronbach’s alpha = S6).

38 FAMILY AND CONClLIATION COURTS REVIEW

Table 1 Women’s Reports of the Occurrence of Men’s Abusive Behaviors Toward Them (in percentages) (N = 210)

Item Yes No

Has he ever hied to frighten or intimidate you by making threats, following you around, or harassing you on the phone?

Has he ever done anythmg to physically hurt you, such as slapping, grabbing, shoving, kicking, punching, or the like, even if it didn’t leave any marks or you didn’t report it? 68 33

Has he ever beaten or choked you? 38 63 Has he ever used a weapon such as a gun, knife, or car to threaten

or to injure you? 18 82

74 26

Table 2 Women’s Reporb of the Frequency of Men Z Abusive Behaviors Toward Them (in percentages) ( N = 210)

Item None reported Once Twice or more

Intimidation In the last 6 months More than 6 months ago

In the last 6 months More than 6 months ago



Physical abuse

Severe. abuse

Use of weapon

39 44

80 45

94 67

96 86

14 I

10 13

2 7

3 5

47 49

10 42

4 26

1 9

Frequency of recent abuse is the average frequency of each of four types of abuse in the last 6 months only. The component items were scored in the same way as for the frequency of abuse scale. Scale scores range from 0 to 2. A scale score of 0 indicates none of the abusive behaviors had O C C U K ~ ~ in the last 6 months, a score of 2 indicates they had dl occurred at the highest level for this time period. Other scores signify intermediate points along this continuum. Scale reliability was good (Cronbach’s alpha = .82).

The women reported an average of two types of abuse (mean occurrence of abuse = .49). The average frequency of abuse over time was less than once


(mean frequency of abuse = .63) and somewhat lower during the last 6 months before court services (mean frequency of recent abuse = .43).

PERCEIVED EMPOWERMENT

The concept of empowerment lies at the heart of the debate over whether mediation is appropriate in cases with a history of domestic abuse. Those who argue that mediation is inappropriate for abused women contend that battered women are at a disadvantage in working with their partners due to underem- powerment and that the court system presents a safer and fairer forum for dispute resolution. We have conceptualized two types of perceived empowerment: court system empowerment and personal empowerment. Court system empowerment refers to respondents’ expectations that the court will give equal consideration to their rights and wishes, listen to them and treat them fairly, and allow them to reach an acceptable settlement. The questions on court system empowerment were not specific to any particular court process; they referred to feelings of empowerment in working with the court system in general. Personal empowerment refers to how willing and competent respondents feel in working with their partners to resolve the dispute over the children.

Most women reported relatively high levels of perceived empowerment in working with the court system, as shown by the first three items presented in Table 3. Nearly all (94% and 97%) of the women reported they sometimes or often thought the court would consider their rights and wishes as important as their partners’ and would treat them fairly. Thirty-one percent never or rarely thought they would be forced to accept an unwanted settlement, and half sometimes thought this.

Women’s perceived empowerment in their relations with their partners varied more widely across the items used to measure this concept, as shown by items 4 through 10 in Table 3. Over half the women had scores representing higher levels of perceived empowerment on items concerning their ability to speak up for themselves (91%), inclinations to give in and avoid further dealings with the man (54%), and feelings of guilt (74%). However, less than half of the women responded with scores indicating higher perceived empowerment on items assessing their partner’s ability to out-talk them (32%), how often the women tend to get what they want in disagreements with their partners (46%), whether the man has taken revenge when she has gotten her way in the past (19%), and fear of disagreeing with him (40%).

An association between experiences of abuse and lower empowerment is one of the key assertions of those who argue that mediation should not be

40 FAMILY AND CONCELIATION COURTS REVIEW

Table 3 Women’s Scores on Empowerment I tem (in percentages)

Item (N) Often Sometimes Rarely Never

I think the court will consider my rights and wishes just as important as his rights and wishes. (203)

I expect the court will treat me fairly and listen to my side of the story. (206)

I will probably be forced to accept a settlement I don’t really want. (204)

I think I can speak up for myself about my custody and visitation wishes just as well as he can. (209)

He can get what he wants by out-talking me. (209)

I feel like giving him everything he wants so I won’t have to deal with him anymore. (209)

I feel guilty asking for the custody or visitation arrangements I really want. (208)

In disagreements with him, I get what I want. (2 10)

He has gotten back at me when I’ve gotten my way in the past. (207)

I am afraid of openly disagreeing with him, because he might hurt me or the children if I do. (206)

55

64

19

67

30

18

10

7

40

28

39

33

51

24

39

28

16

39

41

32

5

4

19

7

20

15

16

40

11

17 -

1

0

12

2

12

39

58

14

8

23

used when there has been a history of domestic abuse. To test this hypothesis, we compared the perceived empowerment of women who had been abused and those who had not. Abused women included those who reported any occurrence of physical abuse, severe physical abuse, or use of weapons or two or more incidents of intimidation. Using this definition, 169 women (80% of the total sample) were classified as abused and the rest as not abused. It should be noted that this is a broad definition of abuse and produces a quite varied group of abuse victims, ranging from those who had experienced several incidences of intimidation to those who may have suffered frequent and severe beatings. Abused women were significantly different from women who had not been abused on the four items shown in Table 4.

These items include the court’s perceived likelihood of considering their rights and wishes as important as their partners’ (5 1 % of abused women often thought this as opposed to 73% of nonabused women), their partners’ ability to out-talk them (72% of abused and 52% of nonabused women reported this

Tabl

e 4

Abus

ed a

nd N

onab

used

Wom

en's S

core

s on

Em

pave

men

t Ite

ms (

in pe

rcen

tage

s)

Item

Abu

sed

Non

abus

ed

~

Often

Som

etim

es

Rar

ely

Nev

er

Ofte

n So

met

imes

R

arely

N

ever

I thi

nk th

e cou

rt w

ill co

nsid

er m

y rig

hts

and

wish

es ju

st as

impo

rtant

as h

is rig

hts a

nd

wish

es, *

51

43

6 1

73

27

0 0

He c

an ge

t wha

t he w

ants

by o

ut-ta

lkin

g me.

* 32

40

15

12

20

32

37

12

way in

the p

ast.*

* 46

41

7 5

10

41

28

21

He h

as g

otte

n ba

ck at m

e whe

n I'v

e go

tten my

I am

afra

id o

f openly disagreeing with

him

, be

caus

e he m

ight

hurt

me o

r the

child

ren

if I d

o.**

33

37

17

14

8

10

20

63

*p <

.05;

**p

< .0

1


often or sometimes happened), partners’ past revenge when the women have gotten their way (87% of abused women said this often or sometimes occurred, compared with 5 1 % of nonabused women), and fear of disagreeing with their partners (70% of abused women were often or sometimes afraid, whereas only 18% of nonabused women were). On each item, abused women perceived less empowerment than nonabused women.

There were no perceived empowerment differences by abuse status on the other six items.

Two scales of perceived empowerment were formed to summarize perceptions of empowerment across these items:

Court system empowerment is the mean of the first three items on Table 3. This scale measures the respondents’ expectations that the court will consider their wishes, listen to them, and reach an acceptable settlement. Scores range from 1 to 4, with higher scores indicating greater levels of perceived empowerment. Scale reliability was good (Cronbach’s alpha = .69).

Personal empowerment is the mean of items 4 through 10 on Table 3. This scale measures how ready, willing, and able the respondent feels in working with her partner to resolve this dispute. Scores range from 1 to 4, with higher scores indicating higher levels of perceived empowerment. Scale reliability was good (Cronbach’s alpha = .75).

Women had fairly high mean levels of court system empowerment, with an average score of 3.12 on a scale of 1 to 4. Personal empowerment was significantly lower than court empowerment, t = 10.08, p < .01, with a mean of 2.83.

Abused women scored significantly lower than women who were not abused on both the court empowerment and personal empowerment scales (on court empowerment, t = 2.31, p < .05; on personal empowerment, t = 3.91, p < .Ol). For court system empowerment, the abused women’s mean was 3.08 and the nonabused women’s mean was 3.28; for personal empowerment, the abused women had an average score of 2.54 compared with the nonabused women’s average of 2.95.

PERCEIVED RISK OF HARM

Another important point in the debate over the use of mediation with abusive couples is the danger the mediation process may present to the victim in affording the abuser personal access to the victim and the possibility of inhibiting the abused party from freely expressing his or her personal wishes in the negotiation process because of perceived risk of harm. Although other dispute resolution procedures, such as going to court or participating in a


custody evaluation, may also allow the abuser to come into contact with the victim, it is the potential suppression of the victim’s ability and willingness to effectively express his or her needs and interests, because of perceived risk of harm, that is said to be especially problematic for the mediation process. Both parties must be able and willing to personally present their interests for the process to work fairly and effectively. We measured perceived risk of harm by a single item asking how likely it was the other parent would physically hurt the reporting parent in the next 6 months. We found that 9% of the women thought it very likely, 28% thought it somewhat likely, and 63% thought it not likely at all.

Abused women’s assessments of danger were compared to nonabused women’s. This chi-square analysis revealed that abused women were significantly more likely to predict harm than nonabused women: 45% of abused women thought physical harm was somewhat or very likely, compared to 5% of nonabused women.

DECISION-MAKING POWER

An important factor that was expected to covary with abuse and influence clients’ readiness to mediate custody and visitation issues was the history of decision-making power exerted by the other parent in the relationship. We hypothesized that higher levels of partners’ decision-making power, as perceived by the reporting parent, would be associated with greater abuse by the partner. The questionnaires included eight items to assess the extent to which the parent’s partner was perceived to exert decision-making power in a number of important areas, including finances, social relationships, sex, childraising, and others.

The percentages of women who responded in each of the four categories is presented for these eight items in Table 5. In these items, answers of often and sometimes indicated higher partners’ decision-making power. Over half the women (52% to 80%) gave these responses to all the items except the last one, assessing partners’ control over her work habits (45%). This pattern of scores indicates the women typically perceived their partners to have substantial decision-making power in a number of areas.

In comparisons of abused and nonabused women, all items except one showed significant differences in chi-square tests (the item assessing decision-making power over how the children were brought up did not differ by abuse status). In all significant cases (shown in Table 6), abused women perceived their partners to have had more decision-making power than the nonabused women indicated for their partners. This supports the hypothesis


Table 5 Women’s Scores on Decision-Making Power Items (in percentages)

When we were together, he decided How I spent money. (207) If or when to have sex. (202) My contact with my family. (207) Who I could be friends with. (206) How the children were brought up. (204) How I used my free time. (206) Where we lived. (203) My work habits, such as where I worked, when I worked, or whether I worked at all. (202)

Often

34 50 29 34 24 34 36

28

Sometimes Rarely Never

32 30 23 21 33 28 27

17

22 13 21 17 31 21 18

23

12 7

28 21 13 18 19

33

that abuse is associated with a belief that one’s partner has greater decision- making power.

A scale of decision-making power was formed using the eight items and examined for scale characteristics. Scale scores had a range of 1 to 4, with lower scores indicating a perception of the partner’s greater decision-making power. The mean score for the women’s data was 2.27, and the alpha coefficient of .86 indicated very good internal consistency. Abused women’s mean score on this scale (2.17) was significantly lower than the average score for nonabused women of 2.70, (t = 3 . 9 4 , ~ c .Ol), again indicating that abused women saw their partners as having more decision-making power than did nonabused women.

ISSUES UNDER DISPUTE

We examined the various types of issues the parents were disputing, including custody, visitation, and finances, to obtain a better understanding of the types of cases entering family court services in the two participating jurisdictions.

The disputed issues most often reported by women were the number and timing of visits and child support (Table 7). Issues around where the children should live and who should make decisions about the children were reported by about one half of the women as areas of disagreement with their partners’ indicating that, at least from the women’s perspective, these cases involve disagreements over several issues.

Tabl

e 6

Abus

ed a

nd N

onab

used

Wom

en’s

Scor

es o

n D

ecis

ion-

Mak

ing P

aver

Item

s (in

perc

enta

ges)

Item

~

Abu

sed

Non

abus

ed

Ofte

n So

met

imes

Ra

rely

Nev

er

Ofte

n So

met

imes

R

arely

N

ever

Whe

n w

e wer

e tog

ether

, he d

ecid

ed

How

I sp

ent m

oney

.*

38

If or

whe

n to

have

sex.

**

55

My

cont

act w

ith m

y fa

mily

.*

32

Who

I co

uld be

frien

ds with.***

38

How

I us

ed m

y fre

e tim

e.**

40

Whe

re w

e liv

ed.*

**

39

My

work

hab

its, s

uch as w

here

I wo

rked

, whe

n 30

I w

orke

d, or

whe

ther

I w

orke

d at

all.*

**

32

20

10

18

33

31

26

12

7 26

49

18

23

20

25

13

21

26

20

17

24

15

26

18

26

18

16

8

33

33

29

16

16

24

16

27

19

22

28

16

8 24

18 8 41

41

26

32

51

*p <

.lo;

**p <

.01;

***p

< .0

5.


Table 7 Women’s Reports of Disputed Issues (in percentages)

Do you and your children’s father disagree about: Where the children should live most of the time? (198) Who should make decisions about child education, health, and

general well-being? (190) Who should have custody? (198) The number of visits? (199) The timing of visits? (198) Other visiting questions such as vacations, transportation, or

holidays? (181) Child support? (1 88) Other financial issues? (179)

48

48 60 73 70

64 12 63

52

52 40 27 30

36 28 37

Abused women differed significantly from women who had not been abused on five of the eight items (Table 8). Consistently, abused women were significantly more likely than nonabused women to report disputes around decision-making about the children, timing and other visitation questions, and child support and other financial issues.

Correlational analyses among the eight items indicated that three scales based on areas of dispute should be formed, rather than a single scale incorporating all such topics. These three scales are

custody disputes, including disagreements over where the children should live, who should make child-related decisions, and who should have custody (three items);

visitation disputes over the number, timing, and other issues around visits (three items);

financial disputes centering around child support and other financial issues (two items).

Scale scores range from 1 to 2, with higher scores indicating greater perceived disagreement.

The alpha coefficients indicate good reliability for the custody (.76) and visitation (31) dispute scales and acceptable reliability for the financial disputes ( 3 ) scale.

Custody disputes show the lowest level of disagreement. Visitation and financial disputes show the highest. The mean score for custody disputes (1.52) is significantly lower than that for the mean for both visitation (1.69, t = 4.56, p < .Ol) and financial (1.67, t = 4.21, p c .Ol) disputes.


Table 8 Abused and Nonabused Women’s Reports of Disputed Issues (in percentages)

Abused Nonabused

k m (N) Yes No Yes No

Do you and your children’s father disagree

Who should make decisions about child abut:

education, health, and general well-being?* 51 49 33 67 The timing of visits?** 74 26 54 46

transportation, or holidays?*** 70 30 34 66 Child support?*** 76 24 53 47 Other financial issues?** 67 33 46 54

Other visiting questions such as vacations,

*p < .lo; **p < .05; ***p < .01.

Abused women, with a mean score of 1.72, were significantly more likely to see financial issues as an area of disagreement than were nonabused women, whose average score on this scale was 1.47 (t = 3.04, p < .Ol). In addition, abused women reported more disagreement over visitation issues (mean = 1.72) than did nonabused women, with an average of 1.53 (f = 2.56, p < ,05). Abused and nonabused women’s scores did not differ on the custody dispute scale.

PREDICTORS OF PERCEIVED EMPOWERMENT AND RISK OF HARM

Lower perceived empowerment is expected to diminish one’s ability to participate assertively and effectively in the mediation process. Perceived risk of harm is also an important factor to consider in determining the appropriateness of mediation. Fear of future violence is expected to exert an intimi- dating, coercive effect on a victim’s willingness to state wishes and expectations during mediation. This may be hidden from the mediator out of fear of retaliation by the abuser.

Perceived empowerment and risk of harm were hypothesized to be a function of the occurrence of abuse;3 perceived decision-making power in the relationship; and the number of custody, visitation, and financial issues being contested. Multivariate models were tested to identify the factors that had a significant, independent relationship to perceived empowerment and perceived risk of physical harm. The models, tested separately by gender, used the scaled variables to identify factors associated with court system


empowerment (scale scores), personal empowerment (scale scores), and perceived danger.

Personal empowerment. The results confirm that abused women perceived lower levels of empowerment than those who had not been abused. Controlling for the other variables, the Occurrence of abuse had a significant negative association with personal empowerment for women, b = -.36, p < .01. Personal empowerment was also significantly related to decision-making power for women, b = .35, p c .01. Lower levels of controlling behavior by their partners were associated with higher levels of personal empowerment, after controlling for other factors.

None of the scales measuring disputed issues was related to personal empowerment for women. There was no evidence that women’s sense of empowerment in working with the other parent was related to the type or number of disputes between the parents.

Court system empowerment. The court system empowerment model was not significant for women at p c .10 (as indicated by the F test of the model), indicating that the selected set of variables was not related to system empowerment for women. There is no evidence that the prior abuse is significantly related to women’s faith in the court system when other factors, namely partner’s decision-making power and the type of abuse, are taken into consideration.

Perceived risk of harm. The extent to which disputants believe they are at risk of future physical injury by their partner is another factor that is thought to affect the appropriateness of mediation. Perceptions of the likelihood their partners might harm them in the next 6 months were significantly related to the occurrence of abuse, b = .93, p < .01. This suggests that perceived fear of harm may be a useful screening question for determining which cases entering family court services have a history of abuse. Women’s fear of harm was not significantly related to the number or type of disputes or partner’s control over decisions.

RESULTS FOR MEN

We collected the same data for men as for women, because the men’s version of the questionnaire was identical to the women’s except for gender- specific language. The men’s data were analyzed in the same way as the


women’s, and the results of the analyses on the men’s data are presented in a fashion parallel to the presentation of the women’s findings.

HISTORY OF ABUSE

Seventy-two percent of the men reported themselves as victims of some type of abuse. Like women, men were more likely to report the less severe forms of abuse than the more severe forms (Table 9). Sixty-one percent of the men reported that their partner used intimidation, and 15% said their partner had used a weapon.

Table 10 presents men’s reports of the frequency with which women had used each of these abuse strategies. The men’s data also show a pattern in which intimidation is reported at similar high frequencies across time periods, whereas the several forms of physical violence occurred more frequently in the distant past than in the last 6 months (when such acts occurred).

Correlational analyses of the men’s data indicated that the same abuse scales could be constructed for men as previously done for women. The average score for occurrence of abuse was under the halfway mark, with a mean of .38 on a scale of 0 to 1. As with women’s scores, the average frequency score was higher for abuse over time (mean = .47 on a scale of 0 to 2) than for abuse in the last 6 months (mean = -33 on a scale of 0 to 2). The alpha coefficients of reliability are in the acceptable to good range for these scales of men’s data, at .62, 34, and .82, respectively.

PERCEIVED EMPOWERMENT

Men reported relatively high levels of perceived empowerment on two of the three indicators of court empowerment. As Table 11 shows, 63% of the men reported they often or sometimes thought the court would consider their rights and wishes as important as their partners’ and 74% often or sometimes thought the court would treat them fairly. However, only 15% of the men perceived higher empowerment on the item assessing their expectations for an acceptable settlement.

Men’s scores showed a pattern similar to the women’s on the personal empowerment items. Over half the men felt higher levels of empowerment in terms of speaking up for themselves (85%), giving in to avoid further interactions with the women (55%), and feelings of guilt (74%). On fear of disagreeing with the women, half reported scores indicating higher perceptions of empowerment and half lower scores. Fewer than half the men reported the higher perceived empowerment levels on items measuring their


Table 9 Men ’s Reports of the Occurrence of Women’s Abusive Behaviors Towad Them (in percentages! (N = 212)

Item Yes No

Has she ever tried to frighten or intimidate you by making threats, following you around, or harassing you on the phone?

Has she ever done anything to physically hurt you, such as slapping, w i g , shoving, kicking, punching, or the like,

61 39

even if it didn’t leave any rmulcs or you didn’t report it? 55 45 Has she ever beaten or choked you? 20 80 Has she ever used a weapn such as a gun, knife, or car to

fhreaten or to irjurc you? 15 85

Tabk 10 Men’s Reports of the Frequency of Women’s Abusive Behaviors Toward Them (in percentages) (N = 212)

~~ ~~~

Item None reported once mice or more

Intimidation In the last 6 months 55 7 38 More than 6 months ago 55 3 42

In the last 6 months 82 8 10 More than 6 months ago 56 12 34

In the last 6 months 94 3 3 More than 6 months ago 82 4 14

In the last 6 months 97 2 1 More than 6 months ago 86 7 I

Physical abusc

Severc abuse

Use of weapon

partners’ ability to out-talk them (33%), getting what they want in disagreements with their partners (30%), and their partners’ having gotten back at them in the past (24%).

Using the same definition of abuse as with women, men were divided into abused and nonabused subgroups. There were 153 men who qualified as abused, or 72% of the total sample. Mean scores on the ten perceived empowerment items were compared across these two groups, and two showed significant differences (Table 12). More abused men (84%) than nonabused men (52%) had lower perceived empowerment scores on the item measuring women’s past revenge when the men got their way, and more


Table 11 Men’s Scores on Empowennent I t e m (in percentages)

Often Sometimes Rarely Never

I think the court will consider my rights and wishes just as important as her rights and wishes. (206)

I expect the court will treat me fairly and listen to my side of the story. (210)

I will probably be forced to accept a settlement I don’t really want. (207)

I think I can speak up for myself about my custody and visitation wishes just as well as she can. (209)

She can get what she wants by out-talking me. (210)

I feel like giving her everything she wants so I won’t have to deal with her anymore.. (211)

I feel guilty asking for the custody or visitation arrangements I really want. (211)

In disagreements with her, I get what I want. (210)

She has gotten back at me when I’ve gotten my way in the past. (203)

I am afraid of openly disagreeing with her, because she might hurt me or the children if I do. (208)

27

33

43

68

23

14

10

1

39

27

36

41

42

17

43

30

16

29

36

23

26

20

10

13

18

18

10

47

16

18

10

5

5

1

15

37

64

23

8

32

abused men (58%) than nonabused men (28%) perceived lower empowerment scores on fear of disagreeing with their partners. These results are similar to the women’s data, although fewer perceived empowerment items differentiated between abused and nonabused men.

Scales for men’s court system empowerment and personal empowerment were constructed in the same manner as for the women. Mean levels were in the middle ground but toward the higher ends for both scales (court system empowerment mean = 2.54 and personal empowerment mean = 2.77, on a scale of 1 to 4), and internal consistency statistics were from adequate to good levels (31 and .62, respectively).

As with the women’s data, we tested for differences between men’s mean scores for court system and personal empowerment to determine whether the men felt more empowered working with the court system or with the other parent. We found a significant difference between these means for the men, t = 1.96, p c .lo, but in the opposite direction as that found for women. The


Table 12 Abused and Nonabused Men’s Scores on Empowennent Item (in percentages)

Abused Nonabused

Item Often Sometimes Rarely Never Often Sometimes Rarely Never

She has gotten back at me when I’ve gotten my

12 3 14 38 21 21 way in the past.* 49 35 I am afraid of openly disagreeing with her, because she might hurt me or the children if I do.* 33 25 11 24 12 16 21 52

*p < .01.

men felt more empowered working with their partners (mean = 2.77) than working with the court system (mean = 2.54).

Mean scores for abused and nonabused men on these scales were compared. No significant differences emerged for the court system empowerment scale, but abused men had significantly lower personal empowerment (mean = 2.55) than nonabused men (mean = 2.84, t = 3.49, p < .01).

PERCEIVED RISK OF HARM

For the men, 5% thought physical harm very likely, 13% predicted harm somewhat likely, and 82% thought it not likely at all. Unlike women, the abused men did not differ significantly from nonabused men in perceived risk of harm from their partners in mean t tests.

DECISION-MAKING POWER

Like women, men saw their partners as having had relatively high levels of decision-making power (Table 13). Over half reported that she often or sometimes made the decisions about money (64%), sex (79%), his contact with his family (53%), childrearing (85%), his use of free time (68%), and where they lived (58%). About half the men said their partner sometimes or often made decisions about his selection of friends (49%). Only 39% said the woman often or sometimes made decisions about his work.

Differences between abused and nonabused men’s reports of the woman’s decision-making power were significant for only two items (Table 14). In

Newmark et al. I DOMESTIC VIOLENCE & EMPOWERMENT 53

Table 13 Men’s Scores on Decision-Making Power Items (in percentages)

Item (N) Often Sometimes Rarely Never

When we were together, she decided: How I spent money. (208) 21 31 24 13 If or when to have sex. (199) 48 31 11 5 My contact with my family. (204) 22 31 26 21

How the children were brought up. (203) 40 45 8 I How I used my free time. (204) 34 34 22 10

Who I could be friends with. (204) 26 23 21 24

Where we lived. (203) 22 36 23 19 My work habits, such as where I worked,

when I worked, or whether I worked at all. (204) 18 21 21 34

both cases, the abused men perceived higher levels of partners’ decision-making power. More abused (71%) than nonabused (59%) men said she often or sometimes made the decisions about how he used his free time, and more abused (63%) than nonabused (45%) men said she had higher levels of decision-making power over where they lived.

This is similar to the pattern found for abused versus nonabused women, although many more items were significantly different for the subgroups of women (7 of the 8) than for the men (only 2 of the 8).

As with the women’s data, a single scale of perceived decision-making power was formed using the eight items and examined for scale characteristics. Scale scores had a range of 1 to 4, with lower scores indicating greater partners’ decision-making power. The mean score for the men’s data was 2.26, and the alpha coefficient of .81 indicated good internal consistency. Abused men’s mean score on this scale (2.17) was significantly lower than the average score for nonabused men of 2.48 (t = 3.12, p < .Ol), indicating abused men saw their partners as having exerted more decision-making power than nonabused men.

ISSUES UNDER DISPUTE

Over half the men reported each of the questionnaire items as a topic of dispute, indicating that men, like women, came to court services with many issues to be resolved.

Comparisons of abused and nonabused men found only one significant difference. Sixty percent of abused men reported disagreements over child-


Table 14 Abused and Nonabused Menb Scores on Decision-Making Power Items (in percentages)

Abused Nonabused

Item Often Sometimes Rarely Never Often Sometimes Rarely Never

When we were together, she decided: How I used my free time.* 36 35 22 6 27 32 21 20

Where we lived.* 25 38 23 14 13 32 23 32

*p < .05.

related decision-making compared with only 39% of nonabused men, p < .01. This is in the same direction as comparisons of abused versus nonabused women, although many more items were significant in the women’s analyses.

The three scales representing custody, visitation, and financial disputes described above were formed as for women and found to be reliable measures for men, with alpha coefficients of .75, .90, and .60, respectively. For men, the highest mean score was on the visitation disputes scale (mean = 1.69), and it was significantly higher than the average scores for both custody disputes (mean = 1.56, t = 3 . 4 1 , ~ < .Ol) and financial disputes (mean = 1.57, t = 3.63, p < .01).

Abused and nonabused men were compared on these three dispute scales, but no significant differences between the two subgroups were found.

PREDICTORS OF PERCEIVED EMPOWERMENTAND RISK OFHARM

Multivariate analyses were used to examine the independent effects of occurrence of abuse; perceived decision-making power; and disputes over custody, visitation, and financial issues on men’s personal and court system empowerment and perceived risk of harm. These analyses used the same scale variables and models tested for women.

Personal empowerment. For men, the regression coefficient for occurrence of abuse was negative but was not significant. This indicates that abuse is not statistically and independently associated with men’s sense of empowerment in working with their partners. Personal empowerment was significantly related to decision-making power for men. Lower levels of perceived controlling behavior by their partners were correlated with higher levels of


Table 15 Men’s Reports of Disputed Issues (in percentages)

Yes No

Do you and your children’s mother disagree about: Where the children should live most of the time? (207) Who should make decisions about child education, health,

and general well-being? (200) Who should have custody? (200) The number of visits? (199) The timing of visits? (195) Other visiting questions such as vacations, transportation, or holidays? (195)

Child support? (202) Other financial issues? (199)

52

55 63 73 71

63 57 57

48

45 31 27 29

37 43 43

perceived personal empowerment, after controlling for other variables in the model, b = .27, p < .01. None of the scales measuring disputed issues was related to men’s perceived personal empowerment.

Court system empowerment. The higher the men perceived the level of dispute about visitation issues, the less empowered they felt in working with the court system, b = -.31, p < .05. However, men’s perceptions of custody and financial disputes were not significantly related to their sense of empowerment in working with the court. The occurrence of abuse and their partner’s decision-making power did not predict the level of court empowerment for men.

Perceived risk of harm. Men’s perceptions of the likelihood their partners may harm them in the next 6 months were, like those of women, significantly related to the occurrence of abuse, b = .34,p < .05. This finding, not apparent in the bivariate t test reported earlier, was observed only when taking into account the effects of other variables in the multivariate model. Men’s fear of harm was not related to perceptions about the partner’s decision-making power or the type and number of disputes.

COMPARISONS OF MEN AND WOMEN

Comparisons of men and women found the following differences to be ~ignificant:~


History of abuse. Women reported more types of abuse than men on the occurrence of abuse scale (mean = .48, compared to .37, f = 3.53, p < .01). Women also reported more abuse than men on the frequency of abuse scale (mean = .59, compared to .45, t = 2 . 9 8 , ~ < .01) and more abuse during the past 6 months on the frequency of recent abuse scale (mean = .40, compared to .32, t = 2.02, p < .05). These findings indicate that for couples in which both parties completed the screening form, women consistently reported more abuse than did men. Perceived court system empowerment. Women’s court system empowerment (mean = 3.08) was significantly higher than the men’s mean of 2.52 ( t = 6.41, p < .Ol), indicating women felt more empowered in working with the court than did men. Perceived risk of harm. Women reported more risk of physical injury during the next 6 months than men. Their mean score of 1.44 on the continuum from not at all likely to somewhat likeZy to very Likely was significantly higher titan the men’s mean of 1.27 (t = 2.14, p < .04). Issues under dispute. Women were significantly more likely to report financial disputes than men. The women’s mean of 1.67 was significantly higher than the men’s mean of 1.60 (t = 2.01, p < .05).

Differences between men and women on the scale of partner’s decision- making power, perceptions of personal empowerment, and the number of visitation and custody issues in dispute were not significant. A comparison of the results of the separate analyses for men and women (based on the total sample) show some gender differences in the relationships among abuse, empowerment and decision-making. Men scored significantly higher on personal empowerment than on court empowerment; for women the reverse was true. The relationship between abuse and perceptions of partner’s control over decision-making was more pronounced for women than for men. Abused women differed significantly from nonabused women on 7 of the 8 decision-making items, whereas abused men differed from nonabused men on 2 of the 8 items.

The multivariate results for the separate analyses of men and women showed some similarities and some differences in the patterns found to be significant. Personal empowerment was significantly predicted by partner’s decision- making power for both men and women. However, personal empowerment was also independently related to the occurrence of abuse for women but not for men. Perceptions of the risk of physical injury in the next 6 months were significantly related to the occurrence of abuse for both men and women.

DISCUSSION

The findings confirm the need for courts and court-connected services to devote attention and resources toward domestic abuse in custody and visita-


tion disputes. Eighty percent of the women and 72% of the men in this study reported experiencing abuse. Although intimidation was the most frequent and enduring form of abuse reported, over half of the men and two thirds of the women reported being physically abused. Severe abuse (beating or choking) was reported by over 38% of the women and 20% of the men. We found that women report being abused more often than men and that most of the physical abuse for both men and women took place more than 6 months prior to family court mediation or evaluation services.

Clearly, a great deal of abuse was reported. This points to the need for courts to screen for abuse. Although this study’s screening questionnaire is much more detailed than intake forms typically used by most court services, it did not provide as detailed a description of the frequency and patterns of abuse as we had planned to collect in later interviews and produced comparisons between a quite varied group of abuse victims and those who had not experienced any abuse. Important differences may exist in patterns of abuse that could be related to perceptions of empowerment, risk of physical injury, and the potential appropriateness of alternative court services. Adequate screening may need to extend beyond one or two questions on an intake form and should be the topic of further study.

We found that the impact of abuse differed for men and women. Women reporting abuse felt less empowered than nonabused women while there was no significant difference in personal empowerment for men. Examination of the items that make up the scale of personal empowerment showed that women reporting abuse were more likely to report that the abuser can out-talk them, has gotten back at them in the past, and that they were afraid to openly disagree because of possible future harm. However, there were no significant differences for abused and nonabused women on four personal empowerment items: (a) giving in just to stop dealing with the abuser, (b) feeling guilty for asking for the custody and visitation that they wanted, (c) perceived ability to speak up for themselves about custody and visitation wishes, and (d) getting what they wanted in disagreements. Although the scale had good internal consistency, there may be two factors (subscales) at work, one representing self-efficacy in this situation (which seems unrelated to abuse) and the other representing intimidation due to risks associated with acting on their own behalf (which seems to be related to abuse). Abused women may believe that they can state their needs and seem willing to stand up for themselves but feel there could be negative repercussions for doing so.

Both men and women who reported abuse were more likely than their nonabused counterparts to feel that their partner had controlled decision- making in their relationship and that their partner might physically harm them in the next 6 months. Therefore, courts and court-connected services may

58 FAMILY AND CONCEIATION COURTS REVIEW

want to consider the advantages of offering a safe, private, and confidential place for all parties to express their needs and interests, independent of one another, and prior to requiring any joint decision-making process.

Although abused women had significantly lower scores on court empowerment than nonabused women, these differences did not appear to be significant in the multivariate analysis that controlled for partner’s decision- making power and the types of disputes. Perceptions of court empowerment were not related to reported abuse for men. Overall levels of court empowerment were higher for women than men. This is not surprising given men’s frequently expressed concern that family courts favor women (Wisconsin Equal Justice Task Force, 1991). However, it is important to note that although women, and to a lesser extent men, felt that the court would listen to them, consider their wishes, and treat them fairly, 85% of the men and 70% of the women felt that they would be forced to accept a settlement that they did not really want. This may simply reflect what is often reality: settlement often involves accepting less than one had hoped for.

IMPLICATIONS FOR COURT PRACTICE

This study cannot answer the question of whether victims of domestic violence should participate in mediation. Some victims of abuse are angered at being excluded (Alaska Judicial Council, 1992) and others are upset at being required to mediate (Hart, 1990). As noted earlier, mediation, custody evaluation, settlement conference, and so on refer to processes that, at times, may be difficult to distinguish from one another. Therefore, the question of what works best for victims of abuse must focus on the nature of the dispute resolution services and the individual preferences and concerns of the participants. The findings presented here suggest that special attention to domestic abuse by family court programs is warranted. Based on the large amount of abuse reported by respondents and its perceived impact on interactions between parents, the following recommendations are offered, pending further research.

1. All court personnel, including judges, court commissioners, mediators and evaluators, should be trained in the dynamics of domestic violence.

2. Effective screening protocols should be incorporated into all family court dispute resolution services, including those contracted out to private provid- ers. Screening should include the opportunity for each parent, without the other parent present, to discuss concerns about safety or intimidation prior to any joint decision-making process.

3. Screening questions should be specific and ask about prior abuse, decision- making procedures, conflict resolution practices, and concerns about safety.


4. Options that allow parents to avoid face-to-face contact should be made available to anyone who has concerns about joint sessions. This may include custody evaluations with separate sessions exclusively, shuttle mediation, and so on.

5. Parents should have the option of bringing a support person and/or legal counsel to assist them in any process that is intended to include negotiations over custody or visitation.

6. All court-connected services should have information on resources within the community (e.g., shelters, anger-management programs, counselors) for clients.

LIMITATIONS OF THIS STUDY

These findings must be considered preliminary. The data are drawn primarily from one location (Portland, Oregon), and the characteristics of the sample are influenced by the demographic makeup of that area and the propensity of clients to use family court services rather than alternative services for reaching settlements. Our impression is that the mediation service enjoys widespread popularity, and the range of cases includes clients of all socioeconomic levels, including those clients who could afford private services. This may not be true in other locations.

Another limitation is that the measures of abuse are limited to a very brief set of questions that do not reflect the context or consequences of violence or the level of injury and provide only the briefest information on the frequency and duration of the abuse. The questionnaire was designed as a preliminary measure to screen for cases that had indicators of abuse. This presents some difficulties for interpreting these findings.

We cannot distinguish postseparation abuse from abuse occurring during the relationship without information on the number and timing of separations and abusive incidents, nor can we assess how abuse may be affected by court actions without information on the type and timing of the current and any prior court motions. Further, the frequency of abuse was measured with an imprecise ordinal scale for a short but definite time period (the previous 6 months) and an indefinite period (prior to the last 6 months). This period may represent as little as 6 months for some couples to 20 years or more for others; we do not have information on the length of the relationship to allow estimates of this time period. This may lead to widely mixed groupings based on abuse scores. For example, someone who had experienced two or three incidents of physical abuse such as slapping, kicking, or punching over a 2-year relationship would have the same item score as someone who had experienced similar violence on a weekly basis for 20 years. Future research should include detailed scales to measure more accurately the prevalence, frequency, duration, context, and type of abusive tactics and consequences.


Finally, this research can only document perceptions of empowerment and personal risk at the start of family court services. Although abused women appear to have lower levels of personal empowerment prior to mediation, it is possible that mediation could have beneficial effects in terms of improving the perceptions of empowerment by providing a neutral, facilitated process for negotiations. The relatively high levels of perceived court empowerment reported by women might show a decline if the court experience undermined the perception that the court would listen to what they had to say. Further research on the impact and results of court services is needed to address these questions.

NOTES

1. Alabama, Alaska, Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mis- souri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, Texas, Utah, Virginia, Washington, Wisconsin.

2. For frequency scores, the not applicable codes for behaviors that never occurred were assigned a frequency of 0.

3. The scales measuring abuse frequency were also used as predictors in regression analyses instead of the occurrence of abuse scale. Because similar results were found with all abuse scales, the results for the scale measuring abuse occurrence are reported as it is the most readily interpretable measure of abuse.

4. These are based on paired t tests of differences in the mean scale values for men and women in the paired sample of 129 men and 129 women. These cases represent 61% of the total sample.

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Lisa Newmurk, PkD., is Research Asssociate at The Urban Institute, Washington D.C.

Adele Harrell, PkD., is Director of the Program on Law and Behavior at The Urban Institute, Washington D.C. She has published extensively in thejield of domestic violence and family issues.

Peter Salem is Associate Director of the Association of Family and Conciliation Courts and a project director:

Documents

DOMESTIC VIOLENCE AND EMPOWERMENT IN CUSTODY AND VISITATION CASES