Solutions for Family Justice
 |
The mediator should be outcome-focusedHe or she steers the process; through posing solution-focused questions, he or she encourages the clients to look ahead to their desired future situation and how they can achieve this outcome. It revolves around the outcome that the clients want to achieve. Solution-focused mediators will ask “What would you prefer instead of the conflict?”, defined in positive, realistic and concrete terms. |
What practitioners say
Be aware of different mediation providers. Many formal and informal justice providers, such as police and cultural leaders offer mediation services. Some of them are not trained mediators. There are specialized and trained mediators available, to whom can be referred to.Be aware of different mediation types. The main types of mediation are transformative, facilitative, and evaluative.
- Evaluative mediation is the style of mediation where the mediator exerts the most control throughout the mediation, and is the most vocal about the positions and offers of the parties.
- In facilitative mediation, the mediator will control the procedure of the mediation, but the parties control the outcome.
- Transformative mediation seeks to transform the conflict by empowering the parties to agree. The transformative mediator is only in the room to call attention to the needs, interests, values and points of view of the parties.
Resources and Methodology
This page focuses on specific meditation techniques that can be applied by mediators, regardless the mediation style. James Wall identified 100 mediation techniques (Druckmann and Wall, p. 1915). We compare two techniques, leaving much room for further research on other mediation techniques.
One technique that can be applied by mediators is formulating questions that seek to get clients to make suggestions about solutions. These questions are referred to as solution-focused questions, which originates from solution-focused brief therapy (Stokoe and Sikveland). The mediator is outcome-focused. The mediator tends to steer the process; through posing solution focused questions, he or she encourages the clients to look ahead to their desired future situation and how they can achieve this outcome. It revolves around the outcome that the clients want to achieve (Bannink, p. 176). Solution-focused mediators will ask “What would you prefer instead of the conflict?”, defined in positive, realistic and concrete terms (Bannink, p. 177).
Another technique for mediators is to formulate problem-focused questions. Problem-focused questions are focused on the history of the conflict (Bannink, p. 175-176). According to the problem-focused model the mediator first needs to explore and analyze the problem. Clients describe the problem and then negotiate an agreement that satisfies the needs of all involved. Mediators facilitate negotiation and are focussed on the process rather than on outcomes
Problem-focused questions Solution-focused questions Solution-focused conversations have a positive effect in less time and satisfy the client’s need for autonomy more than problem-focused conversations.
The solution-focused model has proved to be applicable in all situations where there is the possibility of a conversation between client and professional (Bannink, p. 174).
Applying solution-focused questions results in increased self-efficacy and other positive effects.
According to a randomized study comparing solution-focused and problem-focused questions in the field of coaching], the solution-focused approach significantly increased positive affect, decreased negative affect and increased self-efficacy. Solution-focused questions generated significantly more action steps to help people to reach their goals (Grant, p. 88).
The solution-focused approach ensures a continuous evaluation of the mediation process.
By asking scaling questions throughout the mediation process and by asking at the beginning of each conversation “What is better?”, evaluation of mediation is taking place continuously (Bannink, p. 180). [This could enhance the quality of mediation and perhaps quality of solutions].
Undesirable outcomes Problem-focused questions Solution-focused questions Problem-focused questions can slow down the process of finding a solution.
If the problem or conflict and its possible causes are studied, a vicious circle may be created with ever-increasing problems. This atmosphere becomes loaded with problems, bringing with it the danger of losing sight of the solution (Bannink, p. 175).
Applying problem-focused questions can result in a negative atmosphere.
Conversations about the clients’ positions and a familiarization with the history of the conflict are both deemed not only unnecessary but even undesired, due to their negative influence on the atmosphere during the conversation and the unnecessary prolongation of the mediation (Bannink, p. 176). Applying solution-focused questions may result in solutions that are not owned by the parties in conflict.
Clients want mediators to provide solutions and not leave it for them to ‘sort out differences’. The challenge here can be found in formulations and solution-focused, (or rather solution-proposing) questions. Solutions are the work of mediation, but they are not necessarily the work of clients (Stokoe and Sikveland). [In order for mediators to avoid proposing solutions to their clients, they should be careful in phrasing solution-focused questions].
Balance of outcomes Asking solution-focused questions by a mediator positively affects people’s wellbeing. Mediators should be careful in formulating these questions.
Problem-focused questions on the other hand are not associated with increasement of well-being. In fact, research suggests that applying problem-focused questions may result in a slower resolution process and a negative atmosphere between parties.
The desirable outcomes of solution-focused questions outweigh those of problem-solving questions. Therefore, applying solution-focused questions is preferred.
Recommendation Taking into account the balance of outcomes, the effect on neighbours’ well-being, and the quality and consistency of the evidence, we make the following recommendation: For neighbours in conflict, asking solution-focused questions by the mediator is more effective than asking problem-focused questions, for their well-being.
 |
Prosecution in context includes connecting the victim with intensive, ongoing advocacy services, expanding the response to greater flexibility in response to the victim’s needs and increasing communication and coordination with private advocates, community agencies and other support providers.Pay close attention to the victim’s goals, priorities and interests in order to respond in a flexible manner to her safety concerns while at the same time ensuring perpetrator accountability |
What practitioners say
Consistent with literature Formation or joining community support groups or safety nets: Domestic violence victim support groups have been established in several communities in Northern Uganda where women watch over each other. In one of the communities in Gulu, women have whistles to alert the rest of the group members in case of a domestic violence incident; when one of them blows the whistle, they all come to her rescue, this has enhanced women’s safety in this community. Using a rights-based approach to empower victims of domestic violence especially women to speak out and demand for support services: Many non-government and community-based organizations have adopted this approach and consequently enabled women to demand for protection of victims whenever domestic violence incidents in their community are unaddressed. Women are also able to challenge policies, laws and services that are not responding to their needs. This has often resulted into leaders and law enforcers stepping up services or visiting the community to publicly caution perpetrators and commit to supporting victims, such action has sometimes deterred domestic violence and enhanced victim safety at community level. Other suggested practices Utilising community driven initiatives/solutions to handle domestic violence cases: Examples of such initiatives include the Bataka model in Kagadi, locally established cultural structures in Gulu and clan meetings that are used to resolve domestic disputes in several communities in the Central, Eastern and Western parts of Uganda. Practitioners say that sometimes they refer cases of domestic violence to these structures especially when the victim does not want to take an adversarial approach. These informal structures have sometimes promoted collective responsibility and ownership of both the issue and solutions and made the family and community accountable for the victim’s safety.- Even when a domestic violence case is being pursued in the formal justice system, involving the family or immediate community in its resolution may help to secure victim safety. However, it must be done with caution to avoid breach of confidentiality and to guard against reinforcing gender and power inequalities between men and women. Bringing the family and community on board is important because often they are the first point of contact when the victim is seeking help and it is important to equip them with the right information and skills to support the victim during and after the case.
Resources and Methodology
- Most plausible interventions
- PICO question
- Search strategy
- Assessment and grading of evidence
- Recommendation
No drop prosecution policies
No drop prosecution policies in domestic violence cases have been adopted in several jurisdictions including Portugal and Slovenia. In these jurisdictions, cases proceed regardless of the victim’s interest in prosecution even if she withdraws her original story and testifies for the defense.
No drop prosecution policies have enhanced access to the criminal justice system for domestic violence victims, resulting in more perpetrator convictions and significant improvements in handling domestic violence cases. No drop prosecution policies have also substantially contributed to sending a clear message that domestic violence is unacceptable and shall not be tolerated (Epstein et al, 2003).
Prosecution in context or flexible prosecution
Prosecution in context includes connecting the victim with intensive, ongoing advocacy services, expanding the response to greater flexibility in response to the victim’s needs and increasing communication and coordination with private advocates, community agencies and other support providers (Epstein et al, 2003).
These two interventions are chosen for comparison because of their focus on both victim safety and perpetrator accountability which components are key for the victim’s well-being in the long term. For purposes of the PICO question, we compare no drop prosecution policies with flexible or prosecution in context.
- Lori L. Heise, What Works to Prevent Partner Violence? An Evidence Overview: Report for the UK Department for International Development (2011)
- Karin V. Rhodes, Catherine Cerulli, Catherine L. Kothari, Melissa E. Dichter, Steve Marcus, Victim Participation in Intimate Partner Violence Prosecution: Implications for Safety (2011)
- Deborah Epstein, Margret E. Bell, Lisa A. Goodman, Transforming Aggressive Prosecution Policies: Prioritizing Victims’ Long-Term Safety in the Prosecution of Domestic Violence Cases.” American University Journal of Gender Social Policy and Law 11, no. 2 (2003)
- Deborah Epstein, Procedural Justice: Tempering the State’s Response to Domestic Violence, Georgetown University Law Center, (2002)
- Hanna Cheryl, No Right to Choose: Mandated Participation in Domestic Violence Prosecutions (June 1, 1996). Harvard Law Review, Vol. 109, No. 8, p. 1849, (1996)
- Carol Hagemann–White, “Redress, Rights, and Responsibilities – Institutional Frameworks of Domestic Violence Intervention in Four Countries.” In Interventions against Child Abuse and Violence against Women: Ethics and Culture in Practice and Policy, edited by Hagemann-White Carol, Kelly Liz, and Meysen Thomas, 87-103. Opladen; Berlin; Toronto: Verlag Barbara Budrich, (2019)
The article by Heise is a review of empirical evidence of what works in low- and middle-income countries to prevent violence against women by their husbands and other male partners. The purpose of the report is to inform the future direction of DFID programming on violence against women with an eye towards maximizing its impact and ensuring the best use of scarce resources. The review focuses on efforts to prevent partner violence, rather than evaluating services that are available for victims. In focusing on prevention rather than mitigation or response, the review concentrates on interventions designed to reduce the overall level of violence in the medium to long term, rather than on interventions to meet the immediate needs of victims. This shifts the focus of inquiry away from interventions designed to improve services towards programmes and policies designed to influence the underlying determinants of partner violence. Finally, the review prioritizes programmes that have been evaluated using rigorous scientific designs, emphasizing formal impact evaluation. According to the HiiL guideline approach this evidence is regarded as high.
This longitudinal mixed-methods study of Rhodes and others examines to what extent female IPV victim participation in prosecution is associated with their future safety. The researchers asked asked, “are victims who participate in prosecution safer than those who do not?” Given findings that protection orders can reduce future harm to victims (Holt, 2004), it is essential to understand how a victim’s participation along the continuum of calling 911, talking to the prosecutor, and engaging in criminal prosecution, impacts safety. The authors hypothesized that participation would improve IPV victims’ safety. Subsequent IPV was defined as a future documented IPV-related police incident or an ED visit for IPV or injury. Within a Midwestern county utilizing coordinated community response, they conducted focus groups with survivors and criminal justice agencies and medical providers (Pence & McDonnell, 1999). These focus groups along with in-depth qualitative analysis of a stratified random sample of individual IPV cases, informed our data abstraction and analysis of the administrative data. According to the HiiL guideline approach, this evidence is graded as moderate.
The abstract of the paper by Epstein and others: Until fairly recently, prosecutors’ offices around the country ignored domestic violence cases, failing to press charges in the vast majority of situations and dropping charges prior to conviction in many others. In the 1980s and 1990s, however, the battered women’s movement made significant efforts to improve the criminal justice system’s response. One way that this effort has met with substantial success is that many prosecutors’ offices now have adopted aggressive “no-drop” policies for domestic violence cases. In these jurisdictions, cases proceed regardless of the victim’s preferences about prosecution, even if she recants her original story and testifies for the defense. This paper analyses the impact of no drop charges on the gains made in prosecuting domestic violence cases vis a vis the need to prioritize victim safety. According to the HiiL guideline approach, this evidence is graded as low.
Part I of the article by Epstein documents the recent legal reforms implemented on behalf of battered women in the criminal and civil justice systems. These include warrantless arrest, mandatory arrest laws and no-drop prosecution policies, as well as civil protection order statutes and statutory modifications recommended by the Model State Code on Domestic and Family Violence. Part II describes the ways in which these reforms have improved the state’s responsiveness to victims, yet simultaneously entailed serious costs by diminishing batterers’ perceptions of procedural justice. Part III defines the building blocks of procedural justice and reviews the social science data demonstrating its importance for increasing batterers’ compliance with legal directives. In addition, this research indicates that those concerned with victim safety cannot ignore batterers’ perceptions of fairness. The implications of this idea are explored in Part IV, with suggestions for reforms to foster a sense of fair process for perpetrators. Police and prosecutors must provide defendants with expanded opportunities to feel heard and respected, while simultaneously improving advocacy services for victims. Defense attorneys must take advantage of their special position of trust to encourage batterers to comply with legal dictates. Judges must communicate greater respect for and understanding of defendants, particularly in pro se contexts. And in civil protection order cases, defendants must receive more and better information and must have access to a more individually tailored, responsive pretrial negotiation process. Finally, Part V explores two cautionary notes to this analysis. First, the special characteristics of the batterer population-including information-processing deficits that result in misconstrual of social stimuli-may distinguish abusers from the other research groups. Second, victims themselves also may play a crucial role in batterer compliance-a potentially confounding factor to consider in future studies. According to the HiiL guideline approach, this evidence is graded low.
In the article by professor Hanna, the tensions that arise when the state uses its powers to compel women to assist in the prosecution of their batterers are examined. Although feminist theory has been responsible for increased attention to domestic violence, it does not adequately address the tensions between state accountability and victim autonomy. Professor Hanna illustrates these tensions with dilemmas that she confronted while prosecuting domestic violence cases. Using a pragmatist approach to explore these issues more deeply, Professor Hanna argues that prosecutors can decrease the costs associated with mandated participation by reducing their reliance on victim testimony. She also outlines practical steps that prosecutors can take to achieve this goal. Professor Hanna concludes that prosecutors must take the choice of prosecution away from the victim if they are serious about sending a clear message that domestic violence is criminally unacceptable. According to the HiiL guideline approach, this evidence is graded low.
The research project “Cultural Encounters in Intervention Against Violence (CEINAV)”1 listened to the voices of professionals and of victim-survivors in four countries – England & Wales, Germany, Portugal and Slovenia. Collaborating across disciplines and in cooperation with practitioners for three years, from September 2013 until November 2016, the research sought a deeper understanding of how and why different professionals intervene and how intervention is experienced when women are confronting intimate partner violence, trafficking for sexual exploitation or physical child abuse and neglect. Within the frame of Humanities in the European Research Area (HERA) and the overarching programme of Cultural Encounters, CEINAV took a dual approach. They aimed for a deeper understanding how the diverse legal-organisational frameworks as well as the socio-cultural backgrounds affect practices of intervention, and they reflected how belonging to a majority or minority group or being seen as such plays out on the level of intervention practice. The research crafted an empirical methodology as well as a theoretical foundation that would make comparative analysis possible. They built on previous collaborative research which explored the legal and philosophical foundations for interventions in Europe. According to the HiiL guideline approach this is graded as moderate.
Some of the findings used for this PICO question are based on expert opinions. However, most of the evidence is derived from empirical studies. This classifies the strength of the evidence as low, according to the HiiL methodology: Assessment of evidence and recommendations.
| No drop prosecution policies | Prosecution in context or flexible prosecution |
| No drop prosecution policies secure victims’ immediate safety through adequate response by the state and eliminate the perpetrator’s ability to escape punishment through threatening the victim to drop charges (Hanna, 1998).No drop prosecution policies send an appropriate message to the community that domestic violence is unacceptable and that it will not be tolerated, and this may have influence on other men and women who may act differently (Lerman, 1992). No drop prosecution further enhances victim empowerment by relieving the victim of the responsibility for decisions to arrest and bring charges. This is important because this is a time when the victim may be too afraid of the perpetrator’s physical and psychological retaliation which may hinder her from making an appropriate decision (Mausolff, 1988). | Prosecution based on the victim’s needs enhances the victim’s long-term safety by giving her a sense of autonomy and self-reliance as well the sense that others are on her side. This may help the victim take steps to address the violence in her life and recover from the experience of violence (Herman, 1992).Interventions targeted at an individual’s perception of her relationship and her situation are more successful in eventually effecting change. One study found that victims who followed through with prosecution were less likely to experience subsequent violence but only if they made the personal choice to participate (Epstein, 2003). Prosecution in context addresses the broad scope of the victim’s concerns rather than focusing narrowly on obtaining a rapid conviction. Focusing on the victim’s concerns facilitates the victim’s long-term safety (Epstein, 2003). Prosecution in context increases the victim’s engagement with the system by taking into consideration the victim’s safety concerns and ensures perpetrator accountability at the same time (Buzawa & Buzawa, 1996). Prosecution in context will take into consideration multiple contexts that influence a victim’s thinking and behaviour such as; the victim’s physical and mental health, relationship with the partner, family and friends, religious, work-related, ethnic and neighborhood community, perception of the police, court and other support services and cultural identification and beliefs, factors which influence a victim’s desire and ability to cooperate with the criminal prosecution of their abusive partner (Edleson & Eisikovits, eds. 1996). Prosecution in context requires that the victim is connected to other support services to meet their holistic needs, including advocacy services, safety planning, etc. (Epstein et al, 2003). Prosecution in context allows greater flexibility in response to the victim’s needs and increases communication and coordination with other advocates, community agencies and institutional sources of help for victims (Epstein et al, 2003). |
| No drop prosecution policies | Prosecution in context or flexible prosecution |
| No drop prosecution policies reduce the possibility of providing victim centered services or having the prosecution tailored around the circumstances, interests, and concerns of the victim. By failing to honor the victim’s individual preference, mandatory prosecution patronizes them and may undermine the victim’s effort to control her life by disrupting her intimate relationship, economic security, and family stability (Epstein et al, 2002)No drop prosecution also reduces the possibility for the accused person to get an opportunity to be heard or to perceive that the justice system is treating them fairly and with respect. It is important that the perpetrators perceive the justice system to be fair because evidence indicates that victim safety is directly linked to the perception and experiences of the perpetrator (Epstein et al, 2002). Mandatory prosecution may place victims in danger. There is no conclusive evidence that it results in deterrence. One study indicated that 25% of men arrested pursuant to a victim complaint committed repeat violence against their partner even before the criminal case was resolved in court (Knudsen & Miller eds., 1991). Another study showed a 22% re-assault rate within 3 months of the arrest (Goodman et al., 2000). Perpetrators and their counsel often express concerns about no drop prosecution policies saying they are anti-male and a deprivation of civil liberties, this is common during arrests, pretrial settlement conferences and actual trials. Whether these concerns are true or not they reflect a perception that may be harmful to victims given that it may undermine future compliance with the law (Epstein et al, 2002). | Prosecution in context requires ongoing intensive support for victims that may need reliance on non-state actors or advocacy organizations and may require a considerable amount of time and financial resources (Epstein et al, 2003).Prosecution in context means that occasionally the prosecution may have to refrain from prosecuting domestic violence cases, delay prosecution until victim’s safety is secured or defer sentences. This seems to suggest a return to prosecutorial practices of an earlier era where domestic violence cases were not treated with the seriousness they deserved and also risks losing the gains achieved over time in sending a clear message of condemnation to domestic violence perpetrators (Epstein et al, 2003). |
| In determining whether no drop prosecution policies are more effective than prosecution in context for the well-being of a domestic violence victim that has lost interest in the case, the desirable and undesirable outcomes of both interventions must be considered.Literature suggests that prosecution in context increases the victim’s engagement with the system by taking into consideration the victim’s safety concerns and ensures perpetrator accountability at the same time. On the other hand, this approach many require heavy time and financial investments and may also be looked at as a failure to take domestic violence cases seriously. Taking a no drop prosecution approach might lead to greater long-term risk of harm to the victim because the victim and the perpetrator have been involved in a relationship and their contact may continue beyond the incarceration. Also, domestic violence perpetrators typically receive shorter sentences which increases the victim’s risk to revictimization. Accordingly, taking the prosecution in context approach is recommended. |
| Taking into account the strength of evidence and the balance towards the desirable outcomes of the prosecution in context approach, the following recommendation can be made: For victims of domestic violence who have lost interest in the case, the prosecution in context approach is more conducive to well-being than no drop prosecution |
 |
Parents should provide support to the other spouse until both become self-sufficient and independentSpousal maintenance are agreements where one of the parties provide financial support. Agreements that provide financial support for a limited time until both sides are able to support themselves are recommended. This type of maintenance is known as non-permanent and it can help both parents to become more empowered. Permanent spousal maintenance is where the agreement is to continue providing financial support indefinitely, which can cause dependency. Becoming self-sufficient and financially independent of the former spouse is important, as long as it does not negatively affect the children. |