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Ethical Dilemmas in ADR for Domestic Violence Cases
The conventional belief that domestic violence is a family problem or a matter of solely private concern is both reflected in and reinforced by the use of ADR in the context of family violence. It is concerning that ADR be used for family disputes that go beyond the personal, everyday character of family conflict, and it is especially troublesome when courts take battered women's diversion to mediation or dispute resolution into consideration. Mediation relieves overcrowded courts and reduces expenses for all parties as an alternative to litigation. However, more family disputes—including violent ones—may be forced into Alternative Dispute Resolution (ADR) due to growing docket demands, soaring litigation costs, and the entrenchment of career mediators. In contrast to judicial adjudication, mediation seeks agreement without considering viability or culpability. Domestic violence is a particular type of power expression that takes place in the home, where the abusive male tends to portray shyness or politeness throughout the mediation process. The violent behaviour of an abusive husband is mostly concentrated in the house, and determining the extent of their dominance over their wife is a difficult undertaking.
Adult victims of domestic abuse are complicated people who frequently do not believe they are psychotic or mentally ill. Consensual decision-making necessitated by mediation calls for honesty, a willingness to resolve the conflict, and some degree of compromise from the parties. However, because it prevents the abused woman from questioning the batterer's conditions or voicing her demands, mediating in the shadow of violence might not be feasible. The husband and wife's communication abilities are crucial to the mediator's decision-making, and the mediation's result may be impacted if abused women are unable to express their needs and feelings clearly. Within the Alternative Dispute Resolution (ADR) community, it is doubtful that the power imbalance in domestic abuse situations will be acknowledged by the general public. In addition, the problem of violence against women calls into question the ideological foundation of mediation, and mediators are hesitant to embrace analysis that views power dynamics inside the family as important. The basis for many arguments in favour of using ADR in domestic abuse situations is the inadequacy of the judicial system.
A major step towards the commercialization and decriminalization of family violence is the application of ADR in situations involving domestic abuse. It also represents the regrettable idea that domestic abuse is a personal issue, an act done against a person rather than a group in society. Decriminalizing abuse of women is not the answer to the problem; instead, the criminal justice system and societal structure that support and condone violence against women need to be changed. When ADR is employed in situations where domestic abuse has occurred in the past, battered women are being victimized on an emotional, psychological, and financial level. Saying that mediation in these situations should only be voluntary is insufficient because domestic abuse is now regarded as a criminal offence. Using ADR might lead to a further backlash against the idea that the government should not be involved in providing help for victims of domestic abuse or finding answers to the issue. Publicly concerning topics will increasingly make their way into alternative dispute resolution (ADR) as litigation expenses rise and court dockets fill up.
- ADR is increasingly used in domestic violence cases due to court congestion and rising litigation costs.
- There's concern that ADR may overlook power imbalances and safety concerns for victims of abuse.
- The use of ADR in domestic violence cases raises ethical questions and may inadvertently perpetuate violence against women.
