Tips for Mediation with an Abuser

Key Takeaways:

1. Mediation with an abuser can be challenging and stressful. Preparing for mediation can be helpful and improve parenting agreements.
2. Reading a variety of parenting plans before mediation can offer clarity and confidence. Putting time and space between drafted agreements and signed agreements can help prevent couples from making impulsive or emotional decisions.
3. Parenting plans that have more detail can help prevent an abuser from manipulating the agreements. Mediators and attorneys should never pressure survivors into signing an agreement by a mediator or an attorney.

Editor’s Note: This article is not a substitute for legal advice from a qualified legal professional.

When leaving an abusive partner, you may be required to “mediate” or undergo “mediation” as part of the divorce or family court processes. You may be wondering what mediation is or how it works. You may also be feeling uneasy about having to negotiate with the partner who abused you. These feelings are normal and completely valid. While mediation can be scary and confusing, there are things survivors can do to feel more confident about the process. Understanding your rights and how different decisions may impact you in the future can be empowering for survivors after leaving a situation of domestic violence.

What is Mediation? 

Mediation is the process of coming to an agreement or resolutions between two or more parties. It typically involves a neutral third party called a mediator (usually an attorney or trained professional) who negotiates agreements between parties. When divorcing, mediators often negotiate parenting and financial matters between divorcing parents. 

Some states mandate mediation for divorcing parties. Other states have special provisions for mediating in cases of domestic violence or coercive control. When possible, survivors should consult a qualified legal professional who can help them better understand their rights during mediation. Especially in cases of domestic violence, this can be helpful.

What Happens During Mediation?

Reviewing different parenting plans before mediation can give survivors a sense of what parenting plans look and sound like. Survivors can also talk to other survivors about their parenting plans and parts of their plans that cause conflict with abusers. 

1. A mediator is usually chosen by both parties or the judge. Sometimes, attorneys involved in the case may suggest a particular mediator. However, survivors should make sure that the mediator has no personal relationship with either attorney. Survivors should also consider finding a mediator who has experience in working with survivors of domestic violence. 
2. Once a mediator has been chosen, a date will be scheduled for mediation. If there is evidence of domestic violence, survivors can provide this evidence to the mediator before mediation. This can include a log of abusive events, police reports, hospital records, images, videos and screenshots of threatening texts or emails. If evidence was not able to be collected, survivors should still consider letting the mediator know the history of abuse they have endured, any safety concerns and their goals with mediation.
3. On the day of mediation, each party will participate in mediation, most often from a separate room. This is usually either a digital teleconferencing room or in-person rooms at an agreed upon location. If you have an attorney, your attorney will accompany you to mediation. 
4. The mediator will usually start by asking each party a little bit about themselves and discussing the goals of mediation. 
5. Then, the mediator will go from room to room and discuss ideas for parenting time, decision-making and financial matters. Survivors should discuss each provision with their attorney (if they have one) and think deeply about the implications of each provision on their child. It is okay to think about each provision for an extended period of time, whether a few hours or even longer. Survivors should never feel pressured to agree to a suggestion or idea the mediator offers. 

Prepare for Abusers’ False Narratives

Survivors should anticipate false narratives surfacing during the mediation process. Allegations that often surface against survivors during mediation include “gatekeeping,” “mutual domestic violence,” “alienation,” “uncooperative coparenting,” “mental illness,” “instability,” “substance abuse,” and “bad or unsafe mom” narratives. 

While unsettling, these types of litigation narratives are common with abusers. Processing the allegations as part of an abuser’s playbook while staying focused on the task at hand can help yield less emotional and impulsive agreements for survivors. Discuss these possibilities with a lawyer or a domestic violence advocate to help prepare yourself against them. 

Overall, survivors should remember to focus on their needs and the needs of their children instead of letting the abuser’s claims be the center of the discussion in mediation. 

Mediating in the Context of Power and Control 

Power and control dynamics can make it extremely difficult, if not impossible, to mediate with an abuser. It is unlikely that an abusive ex will voluntarily agree to give up decision-making or parenting time. Survivors should consider focusing on issues that are “low-hanging fruit” such as child support payments (when, how and what amount), how exchanges will be conducted (e.g. where and on what days), and how holidays will be split. 

If issues like parenting time or decision-making become deadlocked, walking away from the mediation table may be appropriate. Survivors should remember that it is better to schedule another session a week or two later than to impulsively agree to one-sided or unsafe agreements.

Provision Language Matters

Survivors should consider how language impacts the way in which each provision is interpreted. For example, phrases like “The parties shall agree…” or “Mother will seek Father’s input” imply collaboration or joint decision-making. Working together with an abuser is not realistic in cases of domestic violence or coercive control. It’s better to use language that implies sole decision-making like, “Mother has final decision-making authority if the parties cannot agree” or “Mother agrees to notify Father of her decision” to reduce everyday conflict and opportunities for your abuser to exert control. 

Laws in some states require sole decision-making in cases of domestic violence. It is important for survivors to cross-reference the laws in their state before agreeing to any provisions for joint decision-making that would otherwise be allocated to the survivor (abused party). When possible, consult a qualified legal professional.

Longer parenting plans with greater detail can decrease confusion and conflict about what is expected of both parties. If your abusive ex doesn’t like rules or details, plans with details can yield clear violations that are easier to document for the court. 

Focus on What Matters

Survivors should remember to mediate agreements that matter. Major issues to mediate are:

• Parenting time and protections for children (e.g. supervised visitation and/or substance monitoring) 
• How holidays and vacations will be split
• How exchanges will be conducted (when, how, with what protections)
• Transportation and school considerations (type, choice, location, fees, decision-making)
• Who is responsible for major medical, extracurricular, and therapeutic needs of the child

There are guides online, like this one, which can help with thinking through details that surface in some parenting plans. As always, survivors should seek legal support from a qualified legal professional when possible.

Survivors should avoid details that are not realistically enforceable or that create unnecessary conflict. For example, it’s not realistic for your abusive ex to return clean clothes or bathe your child prior to exchanges. It may also be unrealistic for your abusive ex to respond to messages within 24 hours or to schedule nightly phone calls with the children. It may also be unrealistic to include provisions for expenses related to birthday parties, college, car purchases or future weddings. Instead, survivors should lean into agreements that allow for independent parenting and unnecessary day-to-day interactions with abusers. This is sometimes called “parallel parenting.”

When possible, having a third party, such as a high-conflict divorce coach, fellow survivor, or attorney, review the agreements before signing can help with understanding the pitfalls of various provisions. Fellow survivors who have separated from abusive partners can also offer a unique lens on how parenting plans play out in real life.

Prepare (and Prepare Some More)

Survivors need to understand that mediating with an abuser can be long and unproductive. As the day wears on, it can be easy to “throw in the towel” and sign agreements that are unfavorable or ambiguous. Some mediators may even play both sides ("she's crazy" or "he's abusive") to lessen your ability to think clearly. While this may feel validating, survivors should remain professional and focus on the task at hand. The goal is not to become friends with your mediator, but rather, to draft agreements that are clear and useful for navigating everyday life with your abusive ex for years to come. 

Having a third party like a high-conflict divorce coach, attorney or fellow survivor review agreements prior to signing can be helpful in understanding unintended consequences of various provisions.

Under no circumstances should survivors feel pressured by the mediator or their attorney to sign an agreement that is one-sided or unsafe. Putting some time and space between drafted agreements and a formal signature can make a world of difference in feeling confident about clear, realistic, and enforceable orders. As always, consult a qualified legal professional to discuss your rights and to seek legal advice.

If you need help navigating the process of leaving the person who abused you, domestic violence advocates are here to help. You can visit our Get Help tool or talk to Hope Chat in the bottom corner of your screen to find an advocate near you with resources and support.