Mediating Domestic Violence Disputes in Community Mediation: Issues of

Women’s Equality and Equity

A Review of Literature

Ramani Jayasundere1

Introduction

Mediation is a popular form of Alternative Dispute Resolution (ADR). ADR systems

are dispute resolution processes that lie outside the formal judicial system of a State.
ADR systems have been in existence for centuries and comprise systems of diverse
processes and techniques. These systems have become popular as less formal, less
cumbersome, more accessible and speedier processes of dispute resolution for an
array of disputes, both criminal and civil in nature.

ADR primarily comprises three forms of dispute resolution: mediation, negotiation

and arbitration. All these forms aim at the same goal of reaching an agreement or
settlement to a dispute which is mutually acceptable to all disputing parties. The
means, or the process, of coming to such an agreement or settlement may differ, but
the end result is the same. Negotiation is a common way of reaching a mutually
acceptable agreement based on a bargaining relationship between parties who have a
perceived or actual conflict of interest, while arbitration differs from negotiation in
that it is a voluntary process by which people in conflict seek the assistance of a
neutral third party to make a decision for them. Mediation is a unique mix of the two
processes. Moore(2003) states that “mediation is an extended or elaborated
negotiation process that involves the intervention of a third party who has limited (or
no) authoritative decision making power” (2003:8). It is a process where two or more
disputing parties come together (either voluntarily or by being compelled by law) at
a forum where the parties are helped to attempt to come to a settlement of the dispute
by a third party facilitator who is impartial and neutral, and who has no power to
make decisions for the disputing parties.

Victim Offender Mediation (VOM) is a form of mediation where a trained mediator

attempts to facilitate a settlement between a victim of a crime and the offender who
committed the crime. VOM stems from the type of justice known as restorative
justice, a theory of justice that focuses on crime against an individual or community
(as opposed to against the State), where the person who has committed the crime
takes responsibility for his/her actions thereby setting a process in place towards
accountability and restoration of long lasting peace between offender and victim.
VOM takes different forms and is practiced around the world. VOM processes
include face to face meetings, family group conferencing, and community
conferencing. Face to face mediation comprises victim and offender mediation

1
PhD Candidate, Faculty of Graduate Studies, Colombo, Sri Lanka. August 2011
facilitated by a third party while family group conferencing includes, in addition to
the victim and offender, a larger group of relatives of the victim and offender.
Community group conferencing includes even a larger group of community
representatives (probation officers, judicial officers etc). All processes rely on
neutral third party facilitation.

The term ‘community mediation’ is used when a mediation process becomes specific
to a community or to a group of people living in a specific locality. Community
mediation deals with community level neighbourhood disputes largely related to land
and property, petty crime and family.

Mediation is a familiar concept in Sri Lanka. The present system of community

mediation in Sri Lanka stems from the Mediation Boards Act No. 72 of 1988. This
community mediation process has become deeply entrenched as an effective system
of dispute resolution in the ethos of community life. Set in place by law, a systematic
administrative process and bureaucratic commitment, community mediation boards
function actively in remote corners of the country enabling people from all walks of
life to access them, willingly and at times reluctantly due to compulsion, for their
conflict resolution needs. The popularity of community mediation boards in Sri
Lanka goes beyond the fact that these are the only community based, legally
recognized, accessible mechanisms of alternative dispute resolution. The community
mediation boards are popular because they are cheap and effective with a high
conflict settlement rate, attracting respect and faith in most communities.

In Sri Lanka, the term ‘community mediation’ is used to denote a mediation process
that is confined to particular localities, namely Divisional Secretary Divisions around
the country. The process becomes entrenched in the community due to access to a
particular mediation board being limited to people in the particular community –
living in a Divisional Secretary Division, and the mediation board itself comprising
people from the said community.

In essence, the community mediation boards offer a dispute resolution mechanism

facilitated by an independent third party to bring about an amicable settlement
between disputing parties. It is a reparative and restitutive process of dispute
resolution primarily aimed at the long term removal of the root causes of disputes in
the community.

The present community mediation boards were established by law in 1988. At

present, in 2011, 302 boards function in all districts around Sri Lanka. In the past
five years the mediation boards have attracted an average of 100,000 disputes
annually with a settlement rate of 60%2.

2
Mediation Boards Commission records 2011.
2
However, although the community mediation process is widely accepted and greatly
appreciated as an effective system of alternative dispute resolution, it is fraught with
issues by which women’s equality in the mediation process has been placed in a
vulnerable position.

Implications for women’s equality stem primarily from the legislation that mandates
community mediation in Sri Lanka itself. The legislation takes on the widely-held
premise that gender neutrality ensures equality for women. The legislation enshrines
legal provisions that enable the setting up and functioning of the community
mediation boards. All these legal provisions are enacted in gender neutral terms and
are perceived by many to be so. But as feminist legal theorists like Kapur and
Cossman (1996) argue, laws do not exist in a vacuum and the gender neutrality of a
law becomes tested on its equal and equitable applications when the provisions get
translated into the social reality. The provisions of the law that govern community
mediation find their envisaged neutrality put to the test when the mediation process
takes place in a community context where there is gender stereotyping,
discrimination of women stemming from socialization, cultural and religious
practices and gender role assignment that is inequitable to women. In such a social
reality, whether the gender neutrality of the legislation is reflected in the community
mediation process is an issue to be examined and the question whether the law is not
non neutral but whether it is also ‘male centric’ in the specific sense that it denies
women equality in the process be raised.

Considering the status of women in the community mediation process from

approaches to equality, one realizes that the implications for women’s equality in the
mediation process point to disadvantages. From a formal equality approach, the
perceived gender neutrality of the law, and the perceptions and attitudes of policy
makers who feel that the process applies equally to women and men, appear to fulfill
all formal equality requirements.

Men and women in the community are considered equal and this basic assumption
(uncluttered by the impact of socialization and attribution of discriminatory gender
roles which are manifest in communities in Sri Lanka, in the law and its
implementation) does not consider differential treatment for women to ensure equal
participation. However an analysis of the law and its practice shows that in reality,
the same treatment has not resulted in equal participation and equitable access for
women.

From a substantive equality point of view where it is not only the equal treatment of
law that ensures equality but also the impact the law has on society, the law and its
implementation implicitly fail in meeting the standards of substantive equality, and
inequality is meted out to women in the community.

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In addition to the legislation and the interpretation of the legislation at policy level,
the reality of the community mediation process raises significant issues that have
implications on women’s equality. Community mediation is a domain that is clearly
unequal in terms of women’s participation where women constitute only a marginal
number of the mediators serving on the mediation boards. While the numbers explain
the unequal situation, reasons for this inequality lie in two distinct spheres. One is
that women continue to be relegated to the domestic sphere in life that denies them
the opportunity to be full participants of public life where mediation boards function.
The stereotyped demarcation of gender roles that assign reproductive responsibilities
primarily to women also deny women equal participation and equal access to
community mediation. The denial of equal opportunity for women to participate in
community mediation as mediators has a direct bearing on the familial ideology
which explains the construction of the family as the basic and sacred unit and
women’s roles as wives and mothers as natural and immutable. This undermines
women’s full and equal participation in society and continues to justify inequality.

In addition to their relegation to the domestic sphere, women continue to be

hampered by the system of nomination in the mediation process. The fact that
community members have to be nominated to be selected as mediators further denies
equal participation for women. The mere fact that women are less visible in the
public sphere results in fewer women being nominated or considered suitable for
nomination as mediators. This process is similar to the political process in Sri Lanka
which also has a low participation of women. Women entering both spheres need to
depend on being nominated by another. Their nomination is neither made on the
basis of competition nor on their educational or professional qualifications.

The question whether the community mediation process becomes an agent of

socialization, or another social institution that determines gender roles and exercises
social control stemming from patriarchal attitudes that are weighted in inequality,
becomes very real.

Looking at women’s access to community mediation, the present structure and the
working of the mediation process further poses obstacles for women’s full
participation as those seeking the services of the process. The domination of male
mediators undoubtedly prevents women from accessing the boards, but the
characteristics of the male mediators further stand as preventing women from
approaching the boards for their dispute resolution needs. In the present environment
in which the community mediation boards work, old wisdom and experience carries
with them traditional norms and attitudes over women. It also has entrenched gender
stereotypes that discriminate against women and an underlying power of male
dominance set within patriarchal communities. The lack of gender sensitivity,
attitudes of general protectionism and paternalism towards women, the self
assessment of gender neutrality in conduct and the self assurance of formal equality
being served, have led to discrimination and the denial of equality for women.
4
The negative impact of the low participation of women as mediators goes beyond the
denial of the right of participation to women. It impacts negatively on the conflict
resolution process where the community mediation process portrays a male point of
view due to the sheer numbers and the lack of sufficient gender sensitization
processes in mediation training.

Mediation training provided to mediators by the cadre of mediator trainers has also
contributed to marginalizing women from the community mediation process. Until
2003, gender sensitization or the raising of women’s position in the community
mediation process was ignored by policy makers, implementers and the real actors in
the process. The gender demarcations, the resultant lack of participation and access
available to women and the inequalities in the mediation practice were all accepted
as part and parcel of the process. Despite the introduction of gender sensitization to
the mediation skills training component, focus on gender and women’s issues
continues to be an add-on in the training carried out more through directive than
through conviction.

Looking at the women in development (WID) and later, the gender and development
(GAD) approaches, a prima facie exploration of the gender sensitization training
content and methodology used by the mediator trainers points to an association with
the WID theory where the WID approach of consciousness raising centred on
women’s concerns and providing a preliminary sense of awareness of women’s
subordination is followed. The methodology however differs from the WID approach
and takes on GAD approach characteristics when the sensitization programmes are
aimed at a mixed group of men and women.

Women’s equality in the actual mediation process must be looked at in the light of
the interest-based mediation approach followed by the community mediation boards.
The interest-based approach looks at mediation focusing on the interests of the
disputing parties instead of the positions taken by the parties. In the interest-based
approach, while a neutral third party could effectively facilitate the disputing parties
to come to an amicable settlement of the dispute, there are instances where the
community mediation boards, in view of mediators as community leaders, decision
makers and advice givers, take on a role of deciding interests for parties. This could
lead to the interpretation of interests based on traditional stereotyped views of
women’s position and stereotyped gender roles which in turn could lead to placing
women disputants at a disadvantaged position.

Women’s equality in community mediation is looked at through the equality theories

which help define the level of discrimination against women. The ‘sameness
approach to equality’ predicates that men and women are to be considered the same
and should therefore be treated equally. This is the approach followed by the
community mediation process, confident in its ability to serve both men and women
5
equally in a gender neutral manner. However ‘the difference approach to equality’
rejects formal equal treatment and advocates for substantive equality for women
which takes gender differences into account. The community mediation boards
process can be viewed as subscribing to both approaches and thereby reinforcing
stereotypes that create differences in the way women are treated. In terms of the
sameness approach the Mediation Boards Act, the Mediation Boards Commission,
the implementation of the community mediation process as well as the attitudes and
views on participation, access and gender equality in the process look at sexual
equality of men and women ensuring women’s equality through equal treatment.
This may lead to unequal treatment resulting in discrimination.

In terms of jurisdiction, the community mediation boards are enabled to settle

criminal and civil disputes. The instances in which disputing parties can come before
a mediation board conform to the perceived gender neutral legislative provisions in
the law. However these very instances have different implications for men and
women, and the situation in the mediation reality at community level is different and
more discriminatory towards women. Further, the referrals of matrimonial disputes
and disputes stemming from gender based violence are shown to have implications
on women which could deny equal hearing and equal justice at the mediation boards.
The compulsory mediation clauses added to penal offences including those that
amount to domestic violence set the tone of trivializing issues of domestic violence.
Feminists (Kapur and Cossman 1996) argue that it is important to bring issues of
domestic violence from the private sphere to the public sphere where, by
criminalising the offence, the State and State actors are compelled to take serious
consideration of the gravity of the offence. By including mediation as a settlement
mechanism for issues of domestic violence, it could re-privatise the family and hide
women’s concerns from public view.

The community mediation process in Sri Lanka undeniably provides communities

with access to a cost effective and swift system of alternative dispute resolution
which is firmly embedded in the culture of each distinct community. Yet, in the
years of its existence, community mediation boards have paid scant regard to
women’s equality and a growing, enhancing system of effective dispute resolution
has marginalized women in every sphere. Thus the implications of the community
mediation process on women’s equality are serious, if gender equality and gender
equity standards that the country prescribes to, are to be respected. The commitment
at all levels of the community mediation process to the laying of a multilayered
foundation of a long process towards women’s equality could ensure a process that is
not only cost effective, speedy and accessible but also gender sensitive and equitable
to all members of the community.

It is in this background that this research examines the impact of mediating domestic
violence disputes in the community mediation process on women’s equality and
equity. For the purposes of this research, what is important would be to examine how
6
far mediating domestic violence disputes, seen as ‘private disputes’ could guarantee
gender equality and gender equity within the context of community mediation.

Domestic Violence and Domestic Violence in Sri Lanka

Domestic violence, simply described, is an act of physical, mental, emotional, sexual

or economic violence committed within the confines of the domestic sphere by
persons living in that domestic sphere. Due to the nature of where the act of violence
occurs, domestic violence is often considered a ‘private’ matter between two or more
parties who have a relationship with each other be they husband and wife, partners,
parent and child or employer and domestic aide. However with legal recognition of
domestic violence as a punishable crime, these acts of violence are taken out of the
private sphere, yet acceptance of the issue’s public nature is slow.

Domestic violence is defined as “violence perpetrated in the domestic sphere, which

targets women because of their role within that sphere, or violence which is intended
to impact, directly and negatively on women within the domestic sphere”.3

Domestic violence is a widespread problem in Sri Lanka. According to the UN

Rapporteur’s report, more than 60% of Sri Lankan women is subject to some form of
domestic violence. The Police Women and Children’s Desks in 2008 received
90,000 complaints of domestic disputes brought to its 36 Desks around the country.
In 2005, as a result of strong lobbying by civil society organizations strengthened by
research carried out by institutions and individual academics, the Prevention of
Domestic Violence Act was enacted in September 2005. Until the enactment of the
Act, domestic violence was virtually an invisible phenomenon in Sri Lanka,
unrecognized by the State and accepted by society at large. With the passing of the
Act, for the first time in the history of the penal law in the country, domestic
violence moved out of the private sphere and is now accepted as a punishable crime.

While accepting the definition of the Special Rapporteur, Sri Lanka has its own
definition of domestic violence in the national policy document, The ‘Plan of Action
supporting the prevention of Domestic Violence’ drafted by the National Committee
on Women4. According to this definition, domestic violence is defined as “an abuse
of power perpetrated mainly (but not only) by men against women. Commonly

3
Radhika Coomaraswamy, former UN Special Rapporteur on Violence Against Women in the Report
of the Special Rapporteur on Violence Against Women, its Causes and Consequences defines
domestic violence as (E/CN.4/1999/98, 1999 p.16)

4
Plan Of Action Supporting the Prevention of Domestic Violence Act 2005. National Committee on
Women. Sri Lanka
7
perpetrated forms of domestic violence include: physical and sexual violence; threats
and intimidation; emotional and social abuse; and economic deprivation”.

The Prevention of Domestic Violence Act5 of Sri Lanka provides a legal definition
of domestic violence as “an act (or attempt to commit an act) committed by a
relevant person which constitutes an offence under Chapter 16 of the Penal Code.
These include the offences of voluntarily causing hurt and grievous hurt, causing
hurt by an act which endangers life, wrongfully restraining or confining person,
assault or use of criminal force, criminal intimidation, murder and sexual abuse”.
The Act also defines domestic violence as “ an act of emotional abuse”. Emotional
abuse is described as a pattern of degrading or humiliating conduct directed towards
a person, including repeated insults, ridicule or name calling, repeated threats which
cause emotional pain or the repeated exhibition of obsessive possessiveness or
jealousy which seriously hampers a person's privacy, liberty, integrity or security.

Thus in Sri Lanka, the legal system addresses gender based violence through the
provisions of the Penal Code (codified in 1883) and the Prevention of Domestic
Violence Act (2005). While many offences against women fall within the general
offences of assault, hurt, grievous hurt, sexual abuse, prostitution, murder and
kidnapping, a few offences deal specifically with women victims. Chapter 16 of the
Penal Code titled "Offences affecting the human body or offences affecting life”,
contains these offences. These offences would generally cover the physical violence
which can be inflicted on women in public sphere as well as in their homes.
However, psychological abuse and economic abuse in the absence of physical
violence would not constitute a substantive offence.

The law that deals with domestic violence is twofold. The Prevention of Domestic
Violence Act no 34 of 2005 provides for protective measures where a victim of
domestic violence can access the formal legal system to obtain a Protective Order
from courts of law. The description of domestic violence in the Act recognizes
several offences against the body of a person included on the Penal Code as well as
any emotional abuse (a pattern of cruel, inhuman, degrading or humiliating conduct
of a serious nature directed towards an aggrieved person).

Statistical data and anecdotal information on domestic violence show a high

prevalence of domestic violence in Sri Lanka and that the majority of these victims is
women. Despite this visibility and recognition of domestic violence as a crime,
addressing the issue remains clouded by the gendered identities, roles and behaviours
of women and society’s expectations of such identities, roles and behaviours.
Hussein (2000) speaks of the burden of stigma on women, social and economic
vulnerabilities faced by women, lack of supportive access to justice and formal
protection systems and socialization processes that minimize the gravity of domestic

55
Prevention of Domestic Violence Act No. 34 of 2005. Sri Lanka Legislative Enactments 2005.
8
violence as preventing women recognizing, reporting and taking action on domestic
violence.

The women who have the strength to break the silence on domestic violence or take
the issue outside the private sphere (immediate family, extended family, kith and kin
networks) and the semi private sphere (women’s organizations, religious institutions)
the formal courts of law offer protection for victims and punitive action can be taken
against perpetrators. This however is for those who access the formal justice system.
For those who access the first points of entry for redressal, largely the Police and
public officers in the community such as Grama Niladharis, remedial action is
largely aimed at minimizing the violence, solving the dispute and keeping the
‘family together’. Here the Police and public officers play an informal (and therefore
untrained) counselling/mediating role using life skills and perceptions of dispute
resolution and family harmony to provide immediate relief to victims. In the event
that these semi formal interventions fail, the victims and perpetrators are referred to
community mediation boards.

From the acceptance of the provisions contained in the United Nations Declaration
on the Elimination of Violence against Women to the Beijing Platform for Action, to
resultant national policies, commitments and legislation, Sri Lanka attempts to come
out of the veil of silence surrounding domestic violence. However sociocultural
attitudes continue to surround the issue of domestic violence, pulling the issue back
repeatedly to the private sphere from the public sphere it has been pushed into.

Reiteration of the fact that domestic violence continues to be perceived as a private

dispute and thereby denying the real understanding of the issue and its impact as
ways of dealing with the issue is seen in sporadic writing on the subject. Nirmaee
(2011) states, “Domestic violence usually does not take place in public. Therefore, it
is not detected and recognized as a crime in Sri Lanka. Men use domestic violence to
suppress the independence of women and maintain their pride (Self importance). The
law enforcement officers, the police and the judges always consider domestic
violence as a "private" matter and they support the abuser indirectly by considering
such problems as problems that do not come under the purview of the low”.

In addition to the continuing perception in Sri Lanka that domestic violence is a

private dispute is impacted on by sociocultural perceptions on women’s equality and
gender relations that are burdened by the little discussed subject of unequal power
relations between men and women in the private sphere. Flood (2009) researching on
factors influencing attitudes to violence against women writes “ One of the most
consistent findings to emerge from studies of attitudes toward violence against
women is a gender gap. Gender is a consistent predictor of attitudes that support use
of violence against women. A wide range of international studies find a gender gap
in attitudes toward domestic violence, sexual assault, and other forms of violence
against women. In general, men are more likely than women to agree with myths and
9
beliefs supportive of violence against women, perceive a narrower range of
behaviors as violent, blame and show less empathy for the victim, minimize the
harms associated with physical and sexual assault, and see behaviors constituting
violence against women as less serious, inappropriate, or damaging”.

Thus in Sri Lanka the recognition of gender based violence as a result of underlying
gender inequalities and power imbalances is yet to be commonly accepted in
research and writing and initiatives to combat gender based violence often rest on
redressal or preventive efforts through awareness raising targeted at addressing the
issue of violence and not often enough on strategically addressing the root causes of
inequality and power.

Mediating domestic violence disputes in the Community Mediation Boards in

Sri Lanka

The Mediation Boards Programme does not record data to show the specific number
of disputes of domestic violence that have been dealt with by the mediation boards.
However extensive anecdotal narratives of Ministry of Justice Mediator Trainers at
Gender Sensitisation and Gender Based Violence Training workshops for Mediator
Trainers conducted by the researcher (2007 - 2010) show that family disputes, land
disputes, disputes over inheritance and penal offences like assault and hurt where
domestic violence is a factor are often referred to Mediation Boards. Hussein (2000)
in her research on domestic violence states that “family disputes involving domestic
violence are dealt with by mediation boards”.

In Sri Lanka, there is a dichotomy in legislative intention which feeds both

supportive and opposing schools of thought on mediating domestic violence
disputes. The legislative provisions set out in the Penal Code enable a domestic
violence issue to be addressed by formal courts of law. However according to the
Mediation Boards Act many acts constituting domestic violence are required to be
referred mandatorily to mediation boards as the first instance at dispute resolution.
But the Prevention of Domestic Violence Act implicitly excludes mediation in
granting Protection Orders to victims of domestic violence.

There is a need to explore these issues in the mediation process in its mediating of
domestic violence disputes as victim offender relationships are inextricably linked to
power imbalances in the private sphere. Shapland et al (2006) write, “the victim–
offender relationship has a typically complicated power balance. Harm was initially
caused to the victim, and those effects may be ongoing and may have been
exacerbated by criminal justice, but criminal justice has also pre-set the offender in a
more vulnerable role”.

Writing on the intricate balance in the mediation process seen in Sri Lanka where
what is commonly perceived as a private dispute is brought into the semi public
10
sphere in the mediation of domestic violence disputes, Shapland et al (2006) write
“Complete informality is likely either to cause harm to one party, or to result in the
facilitator having to make spot judgements to pull out of cases or direct
proceedings—which would immediately disempower the participants. Instead, we
see the principles of fairness, respect and letting everyone have their say as providing
rules to create a more equal and safe space for the discussion. Imposing fairness—in
terms of giving everyone an equal time, or letting everyone continue until they have
no more to say—is one way of attempting to balance, in that space and at that time,
what has been a very unbalanced set of relationships prior to that time”.

The data available on the mediation of domestic violence disputes is sparse in Sri
Lanka as there has been no in depth research done in Sri Lanka on the mediation of
disputes where domestic violence is a factor. The specificities of mediating domestic
violence disputes has also not been the focus of writing on community mediation
since the setting up of community mediation boards in 1988.

Literature Review

Mediation is a tool widely used in addressing disputes where domestic violence is a

factor. Opponents of mediating disputes of domestic violence stand on the primary
premise that domestic violence is a serious crime that should not be relegated to the
sphere of alternative dispute resolution. They are of the view that mediation does not
offer equal access to justice to parties as the nature of the offence places parties in
unequal positions of power and disadvantage. Proponents of the process say that
mediation offers a dispute resolution process that is not as formal (and therefore
forbidding) as the formal courts of law which often prevents disputes of domestic
violence to come before the law, and thus brings the offence into the public realm
where redress can be openly sought. There is also a growing body of literature of
proponents who caution against random application of meditation to settle domestic
violence disputes and advocate screening, caution in process and the selection of
cases for mediation as well as different approaches to mediation in disputes where
domestic violence is a factor. This body of literature relates to women’s equality and
equity directly. Writers, including feminist writers, see mediation of domestic
violence as having far greater implications on women parties. This is due to the fact
that the majority of victims of domestic violence is women. Literature on women’s
equality and equity in mediating domestic violence is equally divided (for and
against) as is the literature on mediation as a dispute settlement process for domestic
violence disputes. Some writers see the mediation process as victimizing and
marginalizing women disputants thus denying access to justice and equality while
some see mediation as an empowering process for women victims.

Literature is explicit on how mediating domestic violence disputes is impacted by

culture. Limited studies from South Asia (from India and Bangladesh) show that
cultural characteristics in South Asia societies have long denied domestic violence
11
importance in the formal legal system and thus the importance placed on the issue in
alternative fora of dispute resolution is less thereby making mediation a unsuitable
process for looking at disputes of domestic violence.

In Sri Lanka there is a dearth of literature on mediation and mediating disputes of

domestic violence. Writing on the community mediation boards since 1989 (when
the Boards were first set up) touch on the involvement of women as mediators and
emphasise that the numbers of women mediators are low while a study on domestic
violence in Sri Lanka refers to disputes being dealt with by Community Mediation
Boards. However there are no studies that elaborate on how the process mediates
disputes where domestic violence is a factor.

Writing on mediating domestic violence disputes and its implications on women’s

equality involve a number of strands of thinking. One looks at the fundamental issue
of whether domestic violence disputes should be mediated at all, as the mediation
process impacts differently on parties. Another looks at ways of mediating disputes
of domestic violence where specific care is given to equality in process and outcome.
The other looks at specific issues which impact of mediating domestic violence
disputes, such as culture, the principle of neutrality and impartiality, training in
mediation skills, through which writing the suitability/unsuitability of mediation for
domestic violence disputes is commented on from the perspective of equality.

Literature largely comprises writing on formal, private processes of mediating

disputes of divorce and child custody where domestic violence is a factor. However a
limited amount of literature on community mediation processes mediating family
disputes where domestic violence is a factor is available. Thus the perusal of writing
on mediating disputes of domestic violence through the examination of the
mediation process, its impact on women, particularly women victims and the
implications of mediating domestic violence disputes on women’s equality, provides
an over arching picture of the complexities of the subject and diverse issues for
consideration.

Since the 1980s, there has been produced an extensive body of research on mediating
domestic violence disputes. The research is confined to studies that have focused on
experiments, discussions with parties that have experienced mediation of domestic
violence disputes as well as academic studies of processes and their implications on
parties. Writing that directly links mediating domestic violence dispute mediation to
feminist legal theory however is not freely available, but links to feminist legal
theory discussions on equality can be easily made.

In “Mediation: A Current Review and Theory Development”, Wall, Jr. et al (2001)

peruse five years of literature from 1997-2001 on mediation and provides
background to the process. The article organizes the literature into six topical areas:
the determinants of mediation, mediation per se, approaches employed by mediators,
12
determinants of the mediation approaches, outcomes of mediation, and determinants
of the mediation outcomes. In this article the descriptions of mediation per se,
mediation approaches, and outcomes is descriptive rather than theoretical. The
literature that deals with the determinants of the mediation, approaches, and
outcomes is quite descriptive but also provides an ample base for theory
development. It provides definitions of interest based mediation and provides process
variations to the legal definition of mediation in Sri Lanka. Authors explain that for
mediation to occur two processes must mesh; first disputing parties must request or
permit a third party to mediate, second the third party must agree to mediate. Norms
and expected benefits shape these two interdependent processes. Norms are
embedded in culture. The article considers studies from China, Korea, Japan,
Malaysia, Thailand and Turkey where people go to mediation because they observe a
traditional and common practice of people going to third parties to get their problems
solved and because society sanctions this. But in the USA disputants do not usually
seek third party intervention and are unfamiliar with mediation and thus do not think
to use it when conflict arises. Thus in a culture that is not used to seeking third party
support in dispute resolution, laws or regulations can compel disputing parties to do
so.

Expected benefits means the realization among disputing parties that mediation will
yield various benefits like settling the dispute, and building a positive relationship
between parties. Most scholars agree that mediation has three defining elements;
assistance or some sort of interaction, a third party who does not have the authority
to impose and outcome. The last condition has led to debate as different scholars feel
that mediators do have power and use it while some argue that the power so used
does not transmute the process from mediation to some other process.

Should domestic violence disputes be mediated?

The view of opponents

Whether domestic violence disputes should be mediated has been a study of research
for over two decades. The studies fall into two categories; opponents of mediating
disputes where domestic violence is a factor, and proponents who see mediation as
an effective means of settling domestic violence disputes. Much of the literature
discusses instances where mediation is mandatory by law for domestic violence
disputes (or in divorce or child custody disputes where domestic violence is a factor).
What is interesting in the literature is that all opponents, although largely not in
favour of mediation as a process to look into domestic violence disputes, are open to
discussing issues that would make mediation a somewhat accepted process largely
because mediation is made mandatory by law. However, feminist writers who
question notions of neutrality, power and women’s equality are emphatic in their
opposition to mediation of domestic violence disputes. On the other hand the
literature that discusses mediation as an acceptable process for addressing domestic
13
violence disputes is rich in the discussion on methods, theories and process
alternatives they offer.

One of the earliest studies on mediation of domestic violence disputes, Felstiner and
Williams’s study on “Mediation as an Alternative to Criminal Prosecution: Ideology
and Limitations” (1978) an early American study of mediator training and
observation of mediation sessions, discusses the possibility of using mediation as an
alternative to criminal prosecution in domestic violence cases. The article provides
several hypotheses for further investigation. These provide the background to the
thinking of the authors where there is a level of reservation about using mediation as
a dispute resolution process for domestic violence disputes. The hypotheses state that
success in mediation will be related to the cognitive orientation of disputants.
Disputants who have a high degree of rights consciousness or whose attitudes
towards all dispute processing are dominated by a court (of law) model will discount
mediators as impotent judges. The authors are of the view that they will feel that the
anormative stance of mediation debases legitimate expectations. The article also
hypothesizes that mediation will fail where adjustments are not feasible and that
there is greater possibility of compromising conflicts of interest than conflicts over
values. This is based on the understanding that success in mediation is limited
because there is little disputants in a domestic violence situation are able to offer.
More importantly authors hypothesise that mediation confronts underlying causes (of
violence) only if they lie close to the surface. If underlying causes are social in origin
or are rooted in patterns established by years of coping or reflect ingrained attitudes,
mediation will not address them. Nothing in training of mediators conditions them to
such issues, and that mediation is ambivalent about manipulation and coercion. It is
their view that the degree of free choice of settlement and the degree of
manipulation/coercion in settlements should be studied.

This study is one of the earliest to discuss the importance of training. The
conclusions on the importance of training mediators are based on the case studied for
the article where a settlement to the dispute was feasible not because it was
formulated by the disputants but because a mediator was alert to a feasible
adjustment in a destructive cycle of interaction.

“Judicial Response to Family Violence: The Importance of Message” a 1990 study

by Menard and Salius in Connecticut, USA, opposes mediation for domestic
violence on grounds that it trivializes the criminality of the offence of domestic
violence. The study of the Connecticut Family Violence Prevention and Response
Act adds to the debate on the use of mediation with battered women and their abusive
partners. The Act was based on the work of a multi disciplinary taskforce. It
principally opposes mediation for domestic violence disputes on the premise that it
takes away the seriousness of the crime. According to the authors “family violence is
a crime and should be treated as seriously as other crimes against persons”
(1990:294). This is based on recorded attitudes of police and courts of law which the
14
authors feel are heavily favoured towards the use of mediation to dispose of family
disputes. This, the authors state reduces the gravity of domestic violence. The Family
Violence Prevention and Response Act is therefore drafted to make mediating
domestic violence disputes nonnegotiable and expressly precludes the use of
mediation. This is expected to communicate to offenders that their use of violence is
unacceptable and will carry consequences. It is also aimed at avoiding offenders not
taking responsibility for their violence and to ensure victim safety if offenders are
given the opportunity to mediate their guilt or innocence with the victims of their
violence or threat.

This provides a clear picture of legislative intent where laws that deal with domestic
violence, implicitly bar mediation of domestic violence disputes. The law that relates
to domestic violence in Sri Lanka and India where the cultural context and
approaches to mediation is different to that of the USA, the legislative intention is
the same. By omission – where the law refers disputing parties to counseling and not
mediation, the laws of both countries that stem from largely from the British legal
system, exclude mediation when dealing with domestic violence disputes. However
in Sri Lanka, when read with the Penal Code and the Mediation Boards Act there is
confusion in legislative intent. Where the Prevention of Domestic Violence Act
implicitly excludes mediation of domestic violence disputes, the Mediation Boards
Act mandatorily requires mediation in offences that constitute domestic violence as
recognized under offences against the body in the Penal Code. Schedule 3 of the
Mediation Boards Act lists out offences where parties must necessarily go to the
Mediation Board thus setting in place mandatory mediation.

This stance by legislation agrees with principles of victim-offender mediation.

Victim Offender Mediation (VOM) is the process which allows a victim and
offender to take part in a face to face meeting by which the victim becomes enabled
to recover from the crime and to bring emotional closure to the issue. The process
allows the victim to have a full voice in articulating the consequences of the crime
and in expressing expected relief that would allow the dispute to be ‘closed’ by way
of a restitution agreement. VOM is modeled on the basic assumption of a consensus
approach to justice and has its foundation in concepts of neutrality and power
balancing. These premises are of major significance to victim-offender mediation in
domestic violence disputes and can limit the impact of such mediations.

Grillo in “The Mediation Alternative: Process Dangers for Women” (1991) examines
mediation’s process dangers for women (primarily in child custody mediation) and
whatever that is useful and empowering in mediation can be lost when mediation is
imposed (in contrast to voluntary mediation). The author describes it as “mediation
becomes a wolf in sheep’s clothing” (1991:1545). The author is of the view, when
imposed, mediation relies on force and disregards the context of the dispute and thus
masquerades as a gentler, more empowering alternative to adversarial litigation. In

15
being imposed, the author states, mediation becomes like the patriarchal paradigm of
law.

But Stamato (1992) in “Voice, Place and Process: Research on Gender, Negotiation
and Conflict Resolution questions Grillo’s stand by saying that before chastening
mediation to be a “patriarchal paradigm of the law that it is supposed to supplant”
and writes that “ we need to be sure that the (mediation) process offers what it claims
to offer, that it does not masquerade as something it is not” (1992:1610).

Chance and Gerencser (1996) in “Screening Family Mediation for Domestic

Violence” disagrees completely with mediating disputes where domestic violence is
a factor. Chance, who is a family court judge, with Gerencser, argue that judges
should not order mediation in any cases involving domestic violence and should
advise victims of alternatives to mediation. But if mediation is the method chosen by
disputing parties, authors state that family court mediators should be trained and
should act to ensure the victim's safety when violence is discovered. The authors also
state that mediators should scrutinize any mediated agreements when current or
recent domestic violence is an issue and should suggest that questionable agreements
be reviewed by counsel before given final approval.

Lechtenstein (2000) in “Mediation and Feminism: Common Values and Challenges”

elaborates on why domestic violence disputes should not be mediated. The article
sets out the premise that mediation is based on several assumptions (of mediation
principles). In mediating disputes where domestic violence is a factor, the author
states these assumptions endanger battered women. The author states that the
mediation process assumes that battered women come to mediation voluntarily, that
parties have similar or equal bargaining power, that the session is private and non
adversarial and that the mediator is a neutral who does not pass judgement and
considers both parties equally blame free or blameworthy for the current conflict and
its resolution. These underlying assumptions contribute to the possible continuation
of abuse, continued disempowerment of the battered woman, and protection from
legal sanctions for the batterer.

Tishler et al (2004) in “Is Domestic Violence Relevant? An Exploratory Analysis of

Couples Referred for Mediation in Family Court” comment based on an exploratory
study of mediation in custody evaluation and reconciliation services with 206
couples comparing those that have experienced domestic violence and those that
have not. The authors conclude that couples with a history of domestic violence
attended court mandated mediation sessions but were deemed unsuitable to
participate in the mediation process. The article however does not resolve the debate
‘to meditate or not to mediate’‘ but identifies differences in patterns of compliance
and participation in mediation among couples who report a history of domestic
violence against those who have not faced domestic violence.

16
The proponent views

In contrast to the opponents of mediating domestic violence disputes, there is a

wealth of writing that supports the mediation of domestic violence disputes. All this
writing however, cautions against broadly applying mediation to domestic violence
disputes as an over encompassing system of alternative dispute resolution. The
studies instead, positively examine the mediation of family disputes where domestic
violence is a factor, see mediation as a possible mechanism to resolve these disputes
and propose guidelines and systems to do so in order that justice and equality is
ensured to all parties in the process.

In “The Domestication of Violence in Mediation”, Cobb (1997) analyses findings of

a study of mediating community disputes and provides an alternative to the feminist
critique of mediating domestic violence disputes. Cobb bases her argument on 12
cases of family conflict and meets the critics of mediation who say that “mediation
operates as a site for the deregulation and decriminalization of violence, particularly
violence against women” (1997:397). Cobb concludes from the findings of the study
that when violence appears in community mediation sessions (which she observes it
does in significant frequency), it is domesticated with significant regularity. That
pain and suffering gets transformed into accounts of pragmatic needs, that order is
restored both by redressing violence but by discursive rules that tame it. The fact that
mediation takes violence from the domestic to beyond the boundaries of family into
the community has been deplored by feminists as condoning and harbouring violence
taking it to the community and thereby to the legal system itself with no regard for
the preservation of rights and protection for the violated. Cobb disagrees and says
that critiquing mediation in that way “misses a central point because the critique
accepts law’s definition of itself as a haven where safety and security are rendered to
the hapless and helpless”(1997:437). But in reality, Cobb quotes Fineman and
Mykitiuk (1994) to show that law does not in fact shelter victims from violence, that
formal legal processes revictimize victims. This is in line with feminist legal
theorists’ views of law and its practice as a patriarchal sphere that discriminates
against women.

Cobb urges feminists to step outside the frames provided by the discourse on
violence to examine the transformative process in mediation through which pain is
made ordinary, reconciled and pardoned.

To mediate or not to mediate?

It is therefore clear that the debate on whether domestic violence disputes should be
mediated or not has not been settled. This argument has direct impact, as dealt with
by a number of studies on how it impacts on women’s equality. Literature
contributing to this debate further explores particular notions and issues directly
related to mediation and mediation of domestic violence disputes.
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Models of mediating disputes where domestic violence is a factor

One of the richest articles that reviews mediation of domestic violence disputes and
provides an elaborate wealth of information on process is “Domestic Violence and
Restorative Justice Initiatives: The Risks of a New Panacea” by Hooper and Busch
(1996).

Hooper and Busch evaluate the views of different authors on mediating offences
including domestic violence disputes. On mediating domestic violence disputes, they
take into consideration authors that have long argued that mediation is inherently
unfair and potentially unsafe for their clients and that women are better served by the
traditional adversarial process, and the views of authors that hold the opinion that
except in most serious cases, the mediation process is more empowering and more
effective for victims than engaging in court proceedings. Authors also take into
consideration the third view that the mediation process may be helpful but that a case
by case determination of appropriateness must be made.

Hooper and Busch examine restorative justice systems in Australia and New Zealand
and try to critically evaluate arguments about the use of a restorative justice model
for domestic violence cases. The article deals with three existing models of
restorative justice; Victims Offender Mediation, Family Group Conference and
Community Group Conference models and puts forth a fourth model, the Burford
and Pennell Conferencing Model.

The first, Victim Offender Mediation(VOM) is the more known model and authors
see this model sharing a number of basic assumptions with the traditional mediation
process; a consensus approach to justice and an emphasis on the concepts of
neutrality and power balancing. These are of major importance to mediation of
domestic violence disputes as power imbalances and dynamics of control are
characteristic of domestic violence relationships and suggest that victims do not have
the capacity to negotiate freely and fairly with their abuses.

The authors accept that mediation is unlikely to provide the answers to the problem
of spouse abuse because of the characteristics of a battered woman; apparent
passivity and learned helplessness, perception that the abusive spouse has more
power over her and the fear of the existing violence as well as of future violence if
she does not agree to the abusive spouse’s views and suggestions.

The authors conclude that mediators, like judges are not exempt from the politics of
gender despite training. This is reflective of the discourse on neutrality and
impartiality in the formal courts of law and in mediation the space is far larger for

18
mediators to bring in their own perceptions on spouse abuse – trivializing,
minimizing the issues and victim blaming.

The authors cite proponents of mediation for domestic violence disputes and are of
the view that those who advocate such on the premise that mediation enables parties
to focus on relationship issues in a way which is not possible during formal court
proceedings are ignoring an important fact about domestic violence. That a proven
characteristic of men who are violent towards their partners is that the violence
escalates at times of separation and that mediation taking place at this time would
further victimize the victim. The authors disagree with the view of looking at
domestic violence as a “couple” problem instead of a serious social problem on the
part of the batterer rather than a defect in the relationship.

All this amounts to trivializing domestic violence which happens in the VOM
process.

The Family Group Conference(FGC) model includes, in addition to the victims and
perpetrator, the extended family in the mediation which is expected to remove the
secrecy of the issues and enable family support for parties. The Community Group
Conference (CGC) model further includes members of the community. These models
however, the authors note, are problematic to use in domestic violence disputes in
that they pose a communitarian approach to offender accountability. They assume
that the notion of a family or community of people with shared values can exercise
surveillance and control over the behaviour of the offender. They have a ‘shaming’
component. The grave assumption here is that these models believe that an abuser
can be shamed into changing his behaviour. Also that all members of the
family/community will accept domestic violence as unacceptable behaviour. This
leads to a clouding of perspective on domestic violence as an offence, the impact of
the violence on the victim and her need for protection.

The authors further introduce a third model, the Burford and Pennell Conferencing
Model which adds on to the Family Group Conference model by requiring
mandatory intervention by government authorities. This model is tested on child
abuse and family violence cases where the mediation involves child welfare workers
and probation workers. Here the government authorities play an advisory role while
the settlement is decided by the families.

The authors note that this model is further developed by Helene Carbonatto (the
Carbonatto model) who brings together parties and their ‘key network members’ to
the mediation. The object of this conferencing model is not only to address the root
causes of the violence but also to impose sanctions on the offender which are
decided on by ‘a community of people who have an interest in the lives of both
offender and victim’. It is based on the premise that if the sanctions do not prevent
further violence, the Police will be involved.
19
This model causes concern in that the suggested sanctions fail to address the
underlying causes of domestic violence and provide superficial responses to victim
safety and autonomy. It also does not require the abuser to take responsibility for his
behaviour. Similar to the Victim Offender Mediation model, this characterizes
domestic violence as a relationship issue and not a social problem on the part of the
abuser.

The authors present their own model of the Community Group Conferencing model
which is described as a hybrid one based primarily on the Victim Offender
Mediation model but incorporating the Family Group Conference model. Here
mediation takes place during the period between conviction and sentencing. The
mediators comprise representatives from the community, statutory agencies and the
legal profession. The importance of this model is that it includes victims and
offenders of diverse offences but largely not domestic violence disputes. The ethics
of the model is that mediation is unsuitable for domestic violence cases in all but the
most exceptional of circumstances. Such exceptions are isolated incidents of
violence occurring during the context of family trauma or highly unusual
circumstances and when the risk of further violence is remote. If and when such a
dispute is accepted, strict screening and mediation processes are adopted.

In conclusion authors appreciate the new opportunities that restorative justice

processes bring for victims and offenders but warns of the need for the greatest care
in mediating disputes that involve domestic violence.

The ultimate conclusion is that by far, domestic violence is an offence which should
go before formal courts of law and that mediation should not be an option unless it is
a rare and exceptional case where the violence is of a unique ‘curable’ nature.

Lewis et al (2001) in “The Law’s Progressive Potential: The Value of Engagement

within the Law for Domestic Violence” review the many systems proposed by
Hooper and Busch and once more take the debate back to the fundamental issue,
should domestic violence disputes be mediated. The authors write in favour of
domestic violence disputes being dealt with in the formal legal system coupled with
far reaching programmes for social and legal change. Their arguments pro the formal
legal system dealing with such disputes can be interpreted to completely excluding
the possibility of mediated solutions to domestic violence disputes. The authors have
investigated legal responses to domestic violence including community and family
conferences (mediation models for addressing such disputes) and look at what a
meaningful intervention for abusers is which improves the safety and wellbeing of
women victims.

The authors accept that the justice system can not eliminate men’s violence or
completely protect women, but acknowledge aspects of the process of legal
20
intervention which are valued by women and which play a useful role in challenging
men’s abuse.

Having analysed community conferencing processes, the authors accept that the
process is “potentially relevant to certain offending behaviour” but is “inappropriate
in dealing with long-standing relationships in which one partner has been persistently
violent to the other” (2001:123). They opine that conferencing diverts violence
against women from the justice system and into the hands of others and thus fails to
control men and eliminate their violent offending behaviour in a sustainable way.
They advocate for the arrest of abusers as a starting point for holding them
accountable for the violence followed by a criminal justice response that incorporates
surveillance and control and rehabilitation of offenders. They also recommend this
approach to be placed within a context of broader efforts to end violence against
women in society.

Critique of feminist voice in preventing mediation of domestic violence disputes

A unique study, “Gendered Violence and Restorative Justice: The Views of Victim
Advocates” by Curtis-Fawley and Daly(2005) chastises feminist and victim
advocacy groups for their vociferous opposition to mediating disputes of domestic
violence which according to the authors has led to a paucity of evidence to comment
on the process’s positive nor negative aspects.

The article primarily explores the views of Australian victim advocates on restorative
justice. It recognizes that there is a paucity of evidence to confirm or discount the
merits of restorative justice for gendered violence as “feminists and victim advocacy
groups have been successful in blocking the application of restorative justice for
cases of gendered violence in most world jurisdictions. This has led to the dearth of
evidence and information on how restorative justice works in practice rather than in
theoretically best or worst scenarios” (2005:8).

The authors write of the need to create a dialogue that moves beyond the debate and
attempts to shape the future of restorative justice through feminist engagement. In
the absence of this move in thinking, they fear that restorative justice will always be
seen as the soft option incapable of dealing with serious crimes such as gendered
violence. The authors see potential in incorporating restorative justice processes into
the criminal justice framework as it is will increase opportunities for men to
acknowledge responsibility for their violent behaviour in a forum that is legally and
emotionally significant. This is a first step towards change in offenders and for
victims to recover from the offense and rebuild their lives.

In the study conducted by the authors, it shows that a few advocates working on
behalf of victims were willing to completely rule out restorative justice as an option
for gendered violence, and most were hesitant to support it as a process for dealing
21
with adult partner violence. This has direct implications on domestic violence. The
study challenges the stand by what they call ‘caricature feminists’ and victim
advocates as promoting a strictly punitive approach to dealing with gendered
violence and calls for a more flexible pragmatic approach that can consider when and
not restorative justice processes can be used for gendered violence – without putting
it completely off the justice agenda.

Notion of neutrality

Discussion on neutrality relates to ‘power’ within the mediation process. Neutrality

or impartiality is often construed to mean the same thing in mediation and objective
adherence to the notion of neutrality can adversely affect power between two
disputing parties which are not placed in an equal position. In domestic violence
disputes, ‘power’ is a strong factor where the perpetrator of violence holds a power
over the victim. Where mediators hold onto the notion of neutrality and impartiality
without understanding of this issue of power, the mediation process can be
oppressive to the victim and have a direct bearing on equality.

In examining the notion of neutrality, Rifkin (1984) in “Mediation from a feminist

perspective : Promises and problems” questions the extent to which mediation does
offer an alternative to legal orthodoxy. The author states that it is not known whether
in practice, mediating disputes reflect feminist jurisprudential differences from male
ideology of law or whether mediation simply reinforces the ‘objective epistemology’
of law which is male dominant. Rifkin questions whether in mediation, an ethic of
partiality could emerge. The article explores the questions raised by a group of
mediators who rejected the possibility and desirability of mediation in favour of a
more reflexive approach to third-party intervention in disputes. It suggests that, rather
than aspiring to the empty goal of neutrality, one should be debating the possibility
of partiality as an ethical standard to govern dispute resolution.

Rifkin argues in favour of a reflexive approach in community mediation. She

addresses the dichotomy between community and neutrality and concludes that
affinity to community does not result directly in partiality, but merely demonstrates
that community mediators are likely to have experience of the conditions which
contribute to local disputes and an understanding of the ways in which grievances
may be constructed and argued. She accepts that the strong presence of values and
preferences are not necessarily a problem in dispute resolution. But mediators need
to be trained in impartiality and explicit about the values they bring to the mediation.
Neutrality, power and culture are three themes that are dealt with frequently in
writings. Cobb and Rifkin’s(1991) “Practice and Paradox : Deconstructing
Neutrality in Mediation” is one of the first studies on neutrality. It offers a
deconstruction of neutrality examining the meaning of neutrality as emergent from a
set of inter related inter dependent terms – justice, power and ideology. The article
discusses neutrality as a concept and the actual practice of neutrality. The authors
22
state that no empirical studies on practice of neutrality in mediation sessions as such
neutrality exists more as a ’felt’ concept and not as a documented one.

Authors are of the view that neutrality and impartiality can not take away from the
need for mediators to balance power. If mediators are dogmatic about being neutral
and impartial and do not practice affirmative bias, they are unwittingly contributing
to maintaining power imbalances in the mediation which can affect the party with
less power negatively.

In a subsequent study, Mulcahy(2001) in “The Possibilities and Desirability of

Mediator Neutrality - Towards an Ethic of Partiality?” conducts an empirical study
of mediating disputes between neighbours at the Southwark Mediation Centre which
looks at mediating a caseload of 400 disputes a year, and discusses the notion of
neutrality in mediation. Mulcahy sees neutrality as being central to mediation as the
words ‘mediator’ and ‘neutrality’ are used interchangeably. She writes that neutrality
in mediation has been elevated to ethical status and recognises that mediators, at
times, must take a more active role to nudge parties towards settlement or where
there is an impasse. Mulcahy quotes Dingwall(1989) stating that by using a neutral
“minimalist” role a mediator can create the possibility for a grossly unequal or
insensitive settlement imposed by the stronger disputant on the weaker one.
According to the author, such substantive unfairness is particularly likely when there
is social, economic or psychological inequality between parties or there is threat of
physical violence. Mulcahy further supports interventionist or directive techniques
like affirmative action to create a level playing field and sees this as essential for
successful mediation, an ethical duty to avoid patently unjust settlements.

Grillo(1991) comments on Cobb and Rifkin’s arguments and agrees that mediation
can be destructive to women because of the rigid orthodoxy on practice (which
dictates neutrality and impartiality). The notion of neutrality according to Grillo
creates a chasm between reality and practice as neutrality is unlikely to be found in
practice. This makes it, in any case, an impossibility. She concludes that the result of
mediators espousing neutrality has resulted in the failure to protect, advocate and
remain concerned about the interests of disadvantaged groups.

Mulcahy quoting Moore(1994) discusses the dilemma in mediation on whether to be

neutral or not. She brings in the dilemma where a mediator is ethically barred from
direct advocacy for weaker party because of commitment to neutrality or impartiality
but also ethically obligated to assist parties reach an acceptable agreement. She
further writes that there has to be a debate on partiality for most the need for
intervention seems to be the exception and despite power imbalances in mediation,
such deviations are viewed as temporary aberrations rather than a constant or
inevitable feature of mediation practice. To support her argument for partiality for
the most desirable outcomes Mulcahy quotes a number of examples by Dingwall and
Greatbacth (1989), Pavlich (1996), and Santos (1997).
23
Astor (2007) in “Mediator Neutrality : Making Sense of Theory and Practice” adds
to Mulcahy. She sets the background to her paper stating that neutrality of a third
party who decides or mediates disputes is central to our ideas of fairness and justice
in western liberal democracies. She argues that neutrality is even more important to
the legitimacy of mediation than it is to the legitimacy of adjudication. But, the
author brings in the aspect that feminist and critical theories have demonstrated the
impossibility of neutrality. Further, it is demonstrably absent in mediation practice
and it conceals the operation of power in mediation. These flaws and contradictions
of neutrality open mediation to constant destabilizing internal dissent and external
critique. She raises a conundrum that mediators face “they cannot `do' neutrality, nor
can they do without it”.

Astor’s article brings in a theoretical wealth where she discusses the character of
neutrality in mediation from the theoretical perspective as well as a practical
perspective. She notes that neutrality is more important in mediation (as opposed to
the formal legal process) as mediation involves what is private, and decision making
may not be according to law while some may even disregard law. The process rests
on consensual decision making and mediator neutrality is essential for this. The
author states that ‘neutrality’ has many meanings and sets out four meanings;
mediator does not influence content or outcome; mediator can not be partisan;
mediator can not be influenced by financial or personal connections or be aware of
information about either or both parties; mediator must be free from influence by
governments. Based on these definitions, the author discusses power and neutrality
and states that when mediators fail to deal with power imbalances, those power
imbalances are reproduced in mediation. Astor sets out three debates to overcome the
dilemmas posed by the need for mediators to be neutral at the expense of fairness
and equality. In the first discussion, she draws a distinction between neutrality and
impartiality with the view that mediators are not neutral but they are impartial. She
accepts that although mediators bring their own views and perceptions to the
mediation, they will nevertheless treat parties equally. But the question here is as to
how a mediator knows he/she is treating parties equally? The second debate is that
mediators need to aspire to be neutral. But there is no clarity on the notion of
neutrality and raises the question - how neutral is neutral? The third debate is on
abandoning neutrality for other characteristics of dispute resolvers such as trust and
reputation for fairness. These however could also be as obscure as the notion of
neutrality in a mediation process.

Commenting on community mediation processes, Astor states that ‘neutrality’ in

western liberal cultures is limited to the third party role while in societies where
communities know each other, trust, respect and a reputation for fairness may
legitimise the activities of a mediator which may otherwise be seen as not being
neutral.

24
This article suggests a new approach to neutrality in mediation, which makes sense in
practice and in theory. It provides for the inevitable situatedness of mediators and
suggests principles to regulate their input into mediation. It suggests a method of
practice that requires (rather than outlaws) attention to power relationships. These
recommendations have implications for mediator practice, training, ethics,
supervision and continuing education. In this, mediators must acknowledge their own
position, understand the influences on their conduct of their families, origin, values,
cultures, identities, professions and a myriad other issues that impact on their lives,
views and attitudes.

These debates are essentially relevant to Sri Lanka’s community mediation process
and its impact on mediating domestic violence disputes. While accepting the
complexities of the notion of neutrality in the mediation process, what needs to be
examined is how a mediator can be impartial while not being dogmatic about being
neutral in disputes where the power imbalance is explicit and stands to disfavour a
victim of domestic violence.

Mulcahy(1994) says that mediators need to be more explicit about the values they
bring to mediation. In order to do this, Mulcahy focuses on training of mediators.
She states that mediator training courses using reflective practice should focus on
assisting mediators to understand their individual perspectives, to actively consider
their own identities, experiences, politics, attitudes and beliefs, and to think about
how these may impact on mediation. In addition continuing education needs to be
provided to develop mediators’ perspectives and impact. Mediators, opines the
author, need to understand their own perspectives and also be open to that of others.
This approach of self awareness is familiar to mediators working across cultures,
who have found ways to understand their own cultural identities and assumptions
and to use that knowledge to work effectively with those who do not share the same
cultural norms.

The role of ‘culture’ in the mediation of domestic violence disputes

Culture impacts on addressing domestic violence as well as mediation processes.

Literature dabbles with the impact of culture theoretically as well as connected to
empirical situations. In an examination of ‘culture’ as affecting mediation processes
provides light to the issues that ‘culture’ in a broad sense brings up as well as the
differences in different cultures in their views and experiences towards mediating
disputes where domestic violence is a factor.

In “Mediation: A Current Review and Theory Development” authors Wall Jr., Stark,
and Standifer (2001) acknowledge that among environmental influences, culture is
the strongest and probably the most varied in mediation processes.

25
An elaboration of this is seen in “Dealing with Disputes: The influence of
individualism-collectivism” by Gire and Carment (1993) where the authors comment
that Eastern desire for harmony in general among people results in a preference
among Eastern communities for mediation and that their cultures affect how they
mediate. The authors see Eastern cultures stressing on harmony and saving face, and
mediators applying pressure tactics because their society gives them the power and
status. Authors further elaborate that this power in mediators enable them to
manipulate parties, but mediator techniques of using power, if properly used can lead
to an agreement if the disputants’ power is balanced by the mediator.

Wall et al elaborate on this accepting that Eastern cultures are more accepting of
mediation as a dispute resolution strategy and base their conclusions on cultural
efficacy theory. Authors observe that disputants in these countries have repeatedly
observed disagreements being handled by third parties, and they know that their
society sanctions this approach. They contrast this with disputants in the West
(primarily fro the United States) where disputants do not seek third party assistance
for resolving disputes as they are not used to doing so. Paquin (1992) illustrates this
point in “Coping and disputing with neighbors” where he concludes from a study in
the United States which found only 10% of disputing neighbors turning to third
parties for assistance, and none of whom used mediation. Likewise, Keating et al.
(1994) in “Strategic choice in everyday disputes” found that disputants very seldom
use mediation. The authors' explanation is that U.S. citizens are unfamiliar with
mediation and therefore do not think to use it when conflicts arise.

Wall et al state that for mediation to occur, two processes must be intertwined;
disputing parties must request or agree to third party mediation and the third party
must agree to mediate. Norms and expected benefits shape these two processes and
norms are frequently embedded in culture. The article draws on literature from
China, Korea, Japan, Malaysia, Thailand, India, Egypt and Turkey and concludes
that the Eastern desire for harmony enhancement generates not only a preference for
mediation but also influences how Easterners mediate.

Bagshaw(2001) in “Culture and Disclosure of Domestic Violence in Family

Disputes” researches on domestic violence mediation in Australia and Malaysia and
writes on diverse cultural (and structural) issues that can impact on domestic
violence mediation. The author is of the view that these cultural differences often
impact more negatively on women thus recognising the gendered difference in the
way culture affects domestic violence mediation. As a means of addressing this
issue, he stresses that mediators and other professionals should always strive to be
self-critical, constantly checking for their own gendered cultural biases and
prejudices in relation to domestic violence, both individually and collectively. This,
he states, will require ongoing education and training and ongoing supervision.

26
If mediation as a process is impacted on by cultural differences, domestic violence
mediation is necessarily influenced by cultural implications which impact heavily on
women’s equality. Despite literature which concludes that people of Eastern cultures
are naturally accepting of mediation as a dispute resolution process, several studies
cited below from South Asia show otherwise when it comes to mediation of disputes
where domestic violence is a factor. The reluctance on the part of disputants to go for
mediation in situations of domestic violence as well as negative impacts of the
process shows that culture does play a role in mediating domestic violence, not as a
supportive factor but on the contrary as a hindering factor. Literature on cultural
implications on domestic violence in general provide examples of this complexity.

Schuler, Bates and Islam (2008) in “Women’s Rights, Domestic Violence, and
Recourse Seeking in Rural Bangladesh” based on a study done in rural Bangladesh
concludes that domestic violence is intertwined with poverty and gender inequality
which prevents rural Bangladeshi women from seeking recourse more often and with
greater success when confronted with violence within marriage. The study finds that
women articulate in symbolic statements about the importance of marriage and
maintaining fidelity to the husband creating a cultural ideology that prevents them
from seeking relief from domestic violence but in reality, it is their economic
dependence on their partners that prompts their decision to stay in an abusive
marriage. Apart from lack of access to resources and opportunities that spell
independence, abused women have no options which places them in a weak
bargaining position even if they were to seek outside assistance to stop the abusive
behaviour. This has grown into a larger issue resulting in the lack of resources
allocated for dealing with domestic violence as well as reinforcing of gender equality
by decision makers, law makers and in formal and informal institutions makes it
impossible for abused women to seek relief.

The study refers to a number of studies where conclusions show different cultural
aspects that lead to situations of inequality and lack of access to justice for women.
Elizabeth’s 2000 study “Patterns and trends of domestic violence in India: An
examination of court records” which includes a perusal of court records in the state
of Karnataka in India found a surprisingly low number of convictions when domestic
violence victims did seek recourse through the court system.

A study in the district of Tehri-Garhwal carried out by the International Center for
Research on Women, Washington (2002) identified fear, distrust, and reliance on
proof and witnesses as impediments to women’s access to justice through the courts.
Panchanadeswaran and Koverola’s 2005 study in Tamil Nadu “The voices of
battered women in India” found that the patriarchal institutional culture of the police
department discouraged women from filing cases. Sagot (2005) in “The critical path
of women affected by family violence in Latin America: Case studies from 10
countries” concludes that the persistence of patriarchal social meanings and behavior
on the part of many of the service providers and in the community at large has led to
27
the generalized perception that family violence does not represent a real danger for
women. This promotes responses that are insensitive, prejudiced, and inadequate,
putting women at greater risk and promoting the aggressors’ impunity. Naved and
Persson’s 2005 study on “Factors associated with spousal physical violence against
women in Bangladesh” shows that Bangladeshi urban and rural women when asked
why they did not seek institutional support to deal with the physical violence their
husbands inflicted on them, said they did not consider it serious enough, which the
study interpreted as fear of losing economic stability, children, shame and family
honour.

In direct relation to the impact of culture on domestic violence mediation, Schuler et

al quoting Goel (2005) in “Sita’s trousseau: Restorative justice, domestic violence,
and South Asian culture” further explain that the patriarchal normative structures in
which South Asian women live have also been identified as a barrier to approaches
such as a “restorative justice” system for dispute resolution. Goel writes creatively
basing her argument on the mythological heroine of the Ramayana and states that
South Asian ideals of womanhood and wifehood create a mind-set in South Asia
women which makes them reluctant to advocate for themselves sin the face of
violence. The author sees such a condition as being detrimental to restorative justice
processes. The author is of the view that much of the writing that speak against the
use of restorative justice mechanisms for dealing with disputes with domestic
violence and sexual violence in them, have not given sufficient importance to the
cultural specifics that govern the lives of the women who are victims. The study is
based on immigrant South Asia women (primarily Indian) in America.

Comparing with Western expectations of victim offender mediation in disputes

involving domestic violence Schuler et al state that the assumptions of victim
independence, victim autonomy, victim’s ability to have an independent ‘voice’
impacts on women’s position in mediating domestic violence. Goel is of the view
that these ideals ignore that the victim is also a wife with her own cultural
understanding of what that role means and that she believes a perfect marriage to be
not about autonomy but about interdependence. The inequity in a violent relationship
is more pronounced for the South Asia woman as culture determines women to see
themselves as dependent, a piece in a wider relational world of husband, children.
The author concludes that restorative justice is the “wrong prescription for South
Asian victims of domestic violence because it fails to even take into account the
history”. (2005:661).

Goel makes generalizations for South Asian women basing her study on the lives of
immigrant Indian women living in America. While the study is of less value in
making assumptions for all South Asian women in general, it discusses the concept
of ‘culture’ as an intrinsic factor in addressing domestic violence dispute within a
restorative justice process.

28
In a previous study Griffiths(1998) in “Mediation, Gender and Justice in Botswana”
examines how popular concepts in mediation - empowerment, individual’s control,
autonomy, own agenda – conform to the reality of the world people inhabit. She
examines these concepts in the setting of a village in Botswana, Southern Africa,
within networks of revolving around kinship, family and community where power
characterises all relationships. The author concludes that mediation must necessarily
acknowledge and address the issue of power as it operates in a given cultural
situation as the experience of powerlessness does not go away with the introduction
of a consensus based informally constituted dispute managements programme.

Griffiths accepts and stresses on the feminist view point that most women face in the
legal area what they encounter as social beings and that “the basic tenets of legal
ideology are at odds with the gendered lives of women.” (1998:341). Mediation
plays a role in bridging social and legal worlds but mediation alone can not
compensate for society. Author recommends that mediators should therefore pay
particular attention to the specific social, cultural and economic structures in which
disputing parties are embedded to better facilitate empowerment and equal
participation.

Stamato (1992) in “Voice, Place and Process: Research on Gender, Negotiation and
Conflict Resolution” wrote prior to Griffiths on the role of gender in managing
differences and resolving disputes in informal settings. She wrote that inquiry into
gender differences (in conflict resolution as well as in other contexts) has a
“troubling moral and ethical dimension” (1992:376) as it carries on the one hand a
risk of reinforcing bias and prejudice and contribute to stereotyping and
discrimination and on the other as preferring a female point of view (a woman thing
or a woman problem as opposed to a gender thing or gender problem). But she
stresses on the need for gender research and connecting theory and practice in
alternative dispute resolution systems.

Stamato discusses the difference between men and women in their handling of
conflict which has a direct bearing on how men and women participate in mediation.
She quotes nine scholars on the subject bringing in debates ranging from 1976 to
1991 and brings out two commonly held perceptions – that men and women
approach conflict differently and men and women handle conflict differently. She
comes up with seven variables that may give rise to gender differences in mediating
conflict: interpretation and meaning of the conflict to the disputing parties; context of
the conflict whether natural or invented; nature of the relationship between the
disputants; sex of the opposite negotiating party; social status or perceived power of
the parties; expectations of behaviour influencing perceptions of what occurs,
reactions to what occurs and what is described as occurring and the parties and third
parties (the mediator).

29
Stamato quotes Watson ad Kasten(1989) in “Separate Strengths? How men and
women negotiate” and agrees that gender differences in negotiating behaviour make
women less effective negotiators than men especially if the negotiation is perceived
as a win-lose game than a problem solving mechanism. She quotes Watson(1991) in
a later study as saying that women report feeling nervous, uncomfortable in
negotiation, and less powerful regardless of situational power. She quotes
Northrup(1991) in “Relationality and Self-Interest: The Implications of Gender for
Conflict Theory” where Northrup writes about how women’s perceived vulnerability
and lack of power even influences their choice of forum and participation in it.
Stamato further quotes Kolb and Coolidge (1992) in “Her Place at the Table: A
Consideration of Gender Issues in Negotiation” saying that women sense that gender
is a factor in negotiation and that women’s suppressed experiences in conflict makes
them unable to deal openly with conflict thus making them feel out of place at the
bargaining table, thus mitigating their natural problem solving skills.

Stamato writes on the role of male female mediators quoting Weingarten and
Douvan (1985) in “Male and Female Visions of Mediation” who found subtle but
systematic differences by gender in style and approach to mediation. She quotes and
accepts Weingarten and Douvan’s findings that female mediators were
comprehensive in their approach deeply seeking underlying problems to ensure long
term solutions in contrast to a male style characterised by short term, task oriented
ways resulting in moving parties aggressively towards agreement. She also quotes
Maxwell and Maxwell (1989) who found that agreements mediated by women were
more likely to last while those mediated by men were more likely to be broken.

Stamato stresses the need to provide the ‘right place’ in which disputing voice can be
comfortable. This includes educating and training mediators of both sexes to
maximise the effectiveness of the process. Stamato’s article is more an assessment of
previous writing than a large contribution to theory but it has potential to stimulate
thinking on the need to look at ‘gender’ as an intrinsic and important component in
mediation.

Perusing the above it is implicit that the debates on mediating domestic violence
disputes are multi faceted, complex and opinions and arguments diverse. In 2009
Gerkin in “Participation in Victim Offender Mediation: Lessons Learned From
Observations” went back to the debate on the suitability of victim offender
mediation. Gerkin discusses victim offender mediation which is known as one of
preferred delivery methods for restorative justice and discusses the common notion
that victim offender mediation is an alternative to traditionally retributive notions of
justice. Through a study conducted through observation of mediations at a
Restorative Justice Centre, Gerkin concludes that meaningful participation is central
to victim offender mediation and low levels of participation denies the achievement
of the goals of such as process – empowerment, recognition, repairing of harm,
meetings need and reintegrating parties. Low levels of participation are caused by
30
power dynamics in the victim offender mediation process as well as the process
being identified as a restorative process.

Gerkin faults the victim offender mediation process as a process that makes
offenders feel as though they are present only to accept responsibility and feel
obliged to acquiesce to the victim’s desires. He sees the process as limiting
participation by the offender. This in turn prevents restorative justice being served.

The power dynamics in victim offender mediation, Gherkin observes, becomes

complicated by pre existing relationships in which there is a clear subordinate(as in
domestic violence). He states that in mediation these pre existing power dynamics do
not disappear and the party with less power becomes less able to fully participate and
impact on the mediation’s outcome.

Gerkin observes that participants are often not prepared for and wary of participating
in a process that needs their active participation to succeed. He notes that this may be
because of the notions of criminal justice that have been internalized through years
of living within a society that chooses to deal with crime in a retributive manner –
where a third party decides their fate.

Gerkin thus concludes that because of these characteristics, victim offender

mediation takes the form of criminal justice. Because participants do not have a
restorative lens to look through, they are misguided by their assumptions about the
restorative process. They are familiar to their roles of victim and offender and
identifies easily with the criminal justice process. Gerkin reinstates Pavlich’s stand
that “restorative justice thus conceptually and practically subordinates itself to the
very criminal justice system it claims to escape” (2005:35).

Gerkin likens victim offender mediation to “ a situation akin to placing someone into
a foreign culture where common practices stand very much outside their own
cultural norms ( which they know very little of ) and asking them to participate”
(2009:242).

But this was refuted way back in 2001 by Wall Jr. et al who stated that norms are
embedded in culture. People go to mediation because they observe a common
practice of people going to third parties to get their problems solved and society
sanctions this.

The recommendations that come out of Gerkin’s study are that parties need to be
fully prepared to participate in victim offender mediation, to develop a restorative
lens and making restorative outcomes a reasonable solution in the participant’s eyes.
He further states that needs of both victims and offender must be of central focus and
the need to focus on power dynamics inherent in restorative justice processes.

31
There is a dearth of literature on community mediation in Sri Lanka. The main
writing on community mediation in Sri Lanka is the 1994 study “Popular Justice in
Practice A Study of Mediation Boards” by Hettiarachchy, Banadaranayake and
Selvakumaran which reviews the functioning of community mediation boards in Sri
Lanka. This study brings out several issues pertinent to the proposed research on
domestic violence mediation and women’s equality in that it comments on the low
participation of women as mediators and the potential impact on women’s access to
and justice in the process. Authors also comment on the character of mediators –
male, older, community leaders although the implications of the particular type of
mediator are not examined.

Jayasundere (2006) writes on implications on women’s equality in the mediation

process in terms of legislation, process and results. “The community mediation
process in Sri Lanka undeniably provides communities with access to a cost effective
and swift system of alternative dispute resolution which is firmly embedded in the
culture of each distinct community. It is popular and widely accessed not only by
disputants but also by courts of justice and law enforcement institutions. Yet, in the
years of its existence, community mediation boards have paid scant regard to
women’s equality and a growing, enhancing system of effective dispute resolution
has marginalized women in every sphere; the legislative provisions, participation and
access. Thus the implications of the community mediation process on women’s
equality are serious if gender equality and gender equity standards that the country
prescribes to are to be respected. The commitment at all levels of the community
mediation process to the laying of a multi layered foundation of a long process
towards women’s equality could ensure a process that is not only cost effective,
speedy and accessible but also gender sensitive and equitable to all members of the
community” (2006:54).

Gaps in literature

Feminist legal theory (also known as feminist jurisprudence) stems from the basic
belief, despite different schools of thought on the intricacies of definition, that
“society is patriarchal – shaped and dominated by men. According to Weisberg
(1993) feminist legal theory provides an analysis and critique of women’s position in
patriarchal society and examines the nature and extent of women’s subordination. It
explores the role of law in maintaining and perpetuating patriarchy. It also examines
methods of eliminating patriarchy. Feminist legal theory is an exploration and
critique of the theoretical issues surrounding law and gender and the application of
feminist analysis and perspective to areas of law.

Expanding this to a system of dispute resolution requires a review of mediation as a

process of access to justice in disputes where domestic violence is a factor. Here the
application of feminist legal theory is explicit. Reviewing writing on mediating
domestic violence disputes shows that writers have dealt with mediation of domestic
32
violence disputes from different aspects of feminist legal theory although literature
that directly examines feminist legal theoretical applications to mediating domestic
violence disputes is sparse.

The law in Sri Lanka has established that certain domestic violence disputes must be
mediated. What is mandated by law has been in practice at community level for
nearly two decades since the first community mediation boards were set up in 1989.
The gaps in literature in Sri Lanka is largely on how the mediation process addresses
domestic violence disputes and how the process impacts on women’s equality as this
has not been studied. As a result, there has been no development in Sri Lanka of
mediation approaches that safeguard victims of domestic violence, offer equal
participation and equity in settlement of disputes.

The literature on mediating domestic violence disputes originates largely from

Western discourse thus creating a ‘western bias’ in literature. The issues surrounding
mediation of domestic violence disputes in South Asian contexts will be important in
arriving at conclusions particular to Sri Lanka and further examination is necessary
of literature originating from Asian contexts.

Addressing gaps in literature

The broader gap in literature of international value that can be filled through a
review of domestic violence dispute mediation from a feminist legal theory
perspective looking at how women’s equality is perceived and addressed in
alternative dispute resolution spheres (as opposed to formal legal systems which is
often the point of study in feminist legal theory application).

From a broadly South Asian and specifically Sri Lankan context, this proposed study
will add extensive value to the body of literature by providing study into mediation
as a process for addressing disputes of domestic violence, implications of process, of
law that mandates the process, participation of men and women, cultural
characteristics and attitudes and sensitisation, training and preparation of
stakeholders in the process for mediating such disputes from the perspective of
women’s equality and equity.

It is in this background of literature on mediation and mediating disputes where

domestic violence is a factor that the proposed research on the implications of
mediating domestic violence disputes on women is to be carried out. The conceptual
approach to the proposed study is described in Part 4, “Conceptual and Theoretical
Framework”.

33
Bibliography

Amerasinghe, A.R.B.2003.Gender and the Law. Sarvodaya Vishwa Lekha Publishers.

Colombo.

Astor, Hillary. 2007. Mediator Neutrality:Making Sense of Theory and Practice.

Social & Legal Studies. 16(2):221-239. University of Sydney. Australia.

Bagshaw, Dale. 2001. Culture and Disclosure of Domestic Violence in Family Disputes
Paper presented at the Asia Pacific Forum: Conversations Beyond Cultural Boundaries.
University of South Australia.

Bartlett, K.T.1990. ‘Feminist Legal Methods’ in Feminist Legal Theory. Katharine T.

Bartlett and Rosanne Kennedy (ed.). Westview Press Inc. USA.

Beach, T. 2002. Report on the Ministry of Justice Community Mediation Board User
Satisfaction Survey. unpublished.

Benjamin, M. and Irving, H.H. 1995. Research in Family Mediation : Review and
Implications. Mediation Quarterly. 13(1):53-82. Jossey-Bass Publishers. USA.

Bertoia, C.E. 1998. An Interpretative Analysis of the Mediation Rhetoric of Fathers’

Rightists: Privatization Versus Personalization. Mediation Quarterly. 16(1):375-386.
Jossey-Bass Publishers. USA.

Bhatla, N. Rajan, A. 2003. Private Concerns in Public Discourse: Women-Initiated

Community Responses to Domestic Violence.Economic and Political Weekly.
38(17):1658-
1664. Economic and Political Weekly. USA.

Brown, S. Cervenak, C. and Fairman, D. 1998. Alternative Dispute Resolution

Practitioners Guide. Centre for Democracy and Governance. USA.

Chance, Chester B., Gerencser. Alison E. 1996. Screening Family Mediation for
Domestic Violence. Florida Law Bulletin. LXX(4). The Florida Bar. USA.

Chandelr, David B. 1990. Violence, Fear, and Communication:The Variable Impact

of Domestic Violence on Mediation. Mediation Quarterly. 7(4). Jossey-Bass.
USA.

34
Cobb, Sara. Rifkin, Janet. 1991. Practice and Paradox : Deconstructing Neutrality
in Mediation. Law & Social Inquiry. 16(16):35-62. Blackwell Publishing, USA

Coleman, P.T. 2000. Power and Conflict. in The Handbook of Conflict Resolution
Theory and Practice. Morton Deutsch and Peter T. Coleman(eds). Jossey-Bass Inc.
USA.

Cooray, L.J.M. 1972. An Introduction to the Legal System of Ceylon. Lake House
Investments. Colombo.

Cossman, B.1990. Feminist Legal Theory Extracts from The Thatched Patio.
International Centre for Ethnic Studies. Colombo.

Curtis-Fawley, Sarah. Daly, Kathleen. 2005. Gendered Violence and Restorative

Justice: The Views of Victim Advocates. Violence Against Women. 11:603. Sage
Publications. UK.

Dionisio, E.R.1993. More Alike Than Different : Women, Men and Gender As Social
Construction. Occasional paper No.3. National Commission on the Role of Filipino
Women. Manila.

Donohue, William A. Bresnahan, Mary I. 1994. ‘Communication Issues in Mediating

Cultural Conflict’ in New Directions in Mediation Communication Research and
Perspective. Joseph P. Folger and Tricia S. Jones (eds). Sage Publishers. UK.

Dukes, Frank. 1990. Understanding Community Dispute Resolution. Mediation

Quarterly. 8(1): 27-37. Jossey-Bass. USA.

Durfee, Alesha. 2009. Civil Protection Orders:Victim Narratives, Legal

Representation, and Domestic Violence. Feminist Criminology. 4(7). Feminist
Criminology. Sage Publications. UK.

Elizabeth, V. 2000. Patterns and trends of domestic violence in India: An

examination of court records in Domestic Violence in India II: A summary report
of four records studies. International Center for Research on Women. Washington,

Felstiner, William L.F. Williams, Lynne A. 1978. Mediation as an Alternative to

Criminal Prosecution: Ideology and Limitations. Law and Human Behaviour.
2(3): 223-244. Springer /Plenum Publishing Corporation, USA.

Fields, Marjory D. 2008. Getting Beyond “What Did She Do to Provoke Him?”:
Comments by a Retired Judge on the Special Issue on Child Custody and Domestic
Violence. Violence Against Women. 14(1):93-99. Sage Publications. UK.

35
Fisher, K. Vidmar, N. Ellis, R. 1993. The Culture of Battering and the role of
Mediation in Domestic Violence Cases. S.M.U.L Review. 46:2117-2174.

Geram, Arghavan. 2009. Bridging the Theory-and-Practice Gap:Mediator Power in

Practice. Conflict Resolution Quarterly. 26(4). Wiley Periodicals, Inc. and the
Association for Conflict Resolution.USA.

Gerenscer, A.E. 1995. Family Mediation: Screening for Domestic Abuse. Florida
State University Law Review. 2(1). Retrieved on 25 October 2009 from
http://www.law.fsu.edu/journals/lawreview/backissues/231.html

Gerkin, Patrick M. 2009. Participation in Victim Offender Mediation: Lessons

Learned From Observations.Criminal Justice Review. 34:226. Sage Publications.
UK.

Gewurz, I.G. 2001. (Re)Designing Mediation to Address the Nuances of Power

Imbalances. Conflict Resolution Quarterly. 19(2):135-162. John Wiley & Sons, Inc.
USA.

Gire, J.T. Carment, D.W. 1993. Dealing with Disputes: The influence of
individualism-collectivism. Journal of Social Psychology. 133:81-95. Heldref
Publications.USA.

Goel, Rashmi. 2005. Sita’s Trousseau: Restorative Justice, Domestic Violence and
South Asia Culture. Violence Against Women. 11(5):639-665. Sage Publications.
UK.

Griffiths, Anne. 1998. Mediation, Gender and Justice in Botswana. Mediation

Quarterly. 15(4). Jossey-Bass.USA.

Grillo, Trina. 1991. The Mediation Alternative: Process Dangers for Women. Yale
Law Journal. 100(6): 1545-1610.Yale Law Journal.USA.

Gunaratne, C. 2005. Property Ownership and Inheritance Rights of Women for

Social Protection: The Sri Lanka Experience. Centre for Women’s Research
(CENWOR). Colombo.

Harrington, Christine B. Engle Merry, Sally. 1988. Ideological Production: The

Making of Community Mediation. Law & Society Review. 22(4): 709- 736.
Blackwell Publishing. USA.

Henning, Kris. Feder, Lynette. 2005. Criminal Prosecution of Domestic Violence

Offenses: An Investigation of Factors Predictive of Court. Criminal Justice and
Behavior. 32; 612. Sage Publications. UK.
36
Herrman, M.S. Hollet, N.L. Eaker D.G. Gale, J. 2003. Mediator Reflections on Practice:
Connecting Select Demographics and Preferred Orientations. Conflict Resolution
Quarterly. 20(4): 403-427. Wiley Periodicals Inc. USA.

Herrnstein, B.H. 1996. Women and Mediation:A Chance to Speak and to Be Heard.
Mediation Quarterly. 13(3):229-241. Jossey-Bass Publishers. USA.

Hettiarachchy, T. Bandaranayake, S. Selvakkumaran, N. 1994. Popular Justice in

Practice A Study of Mediation Boards. (ed) T. Hettiarachchy . Deepani Printers &
Publishers (Pvt) Ltd. Colombo.

Hooper, Stephen. Busch, Ruth. 1996. Domestic Violence and Restorative Justice
Initiatives: The Risks of a New Panacea. Waikato Law Review(Special Issue on
Domestic Violence). 4(1). University of Waikato School of Law. New Zealand.

Hudson, Barbara. 2006. Beyond white man’s justice:Race, gender and modernity.
Theoretical Criminology. 10(1): 29–47. Sage Publications. UK.

Hussein, A. 2000. Sometimes there is no blood:Domestic Violence and Rape in

Rural Sri Lanka. International Centre for Ethnic Studies. Colombo.

Jayasundere, R. (2009). Understanding Gendered Violence against Women in Sri

Lanka: A Background Paper. Women Defining Peace. Colombo

Jayasundere, R.(2003). Report on Gender Sensitisation to the Governance and

Institutional Strengthening Project (GISP) supported Enhanced Community Mediation
Programme. unpublished.

Kapur, R. and Cossman, B.1996. Subversive Sites:Feminist Engagements with law in

India. Sage Publications. New Delhi.

Keating, M. E. Pruitt, D. G. Eberle, R. A. Mikolic. J. M. 1994. Strategic choice in

everyday disputes. International Journal of Conflict Management. 5:143-57.
Emerald Group Publishing. USA.

Kelly, Joan B. 1995. Power Imbalances in Divorce and Interpersonal

Mediation:Assessment and Intervention. Mediation Quarterly. 13(2):85-98. Jossey-
Bass Publishers.USA.

Knox, R. (MCMXI). 1979. An Historical Relation of Ceylon. Colombo. M.D.

Gunasena & Co. Ltd.Colombo.

37
Kolb, D. and Coolidge, G.1992. ‘Her Place at the Table: A Consideration of Gender
Issues in Negotiation’ in Negotiation Theory and Practice. J. Broslin and J. Rubin.
(ed) PON Books. Cambridge.

Kolb, D.M. 2000. More than Just a Footnote: Constructing a Theoretical Framework
for Teaching about Gender in Negotiation. Negotiation Journal. 16(4) Harvard Law
School. USA.

Kolb, D.M.2002. Negotiations Through A Gender Lens. Working Paper No. 15.
Center for Gender in Organizations. USA.

Kritek, P.B.2002. Negotiating at an Uneven Table. Developing Moral Courage in

Resolving Our Conflicts. Jossey-Bass. USA.

LeBaron, M. 2002. Bridging Troubled Waters Conflict Resolution from the Heart.
Jossey-Basse. USA.

Lechtenstein, Marsha. 2000. Mediation and Feminism: Common Values and

Challenges. Mediation Quarterly 18(1):19-32. Jossey-Bass Publishers.USA.

Leitch,M.L. 1996. The Politics of Compromise: A Feminist Perspective on Mediation.

Mediation Quarterly. 14(15):163-175. Jossey-Bass Publishers. USA.

Lewis, Ruth. Dobash, Rebecca E. Dobash, Russel P. Cavanagh, Kate. 2001. The
Law’s Progressive Potential: The Value of Engagaement within the Law for
Domestic Violence. Social and Legal Studies 10(1). Sage Publications. UK.

Lindsey, L.L.1990. Gender Roles A Sociological Perspective. Prentice-Hall, Inc. USA.

Littleton, Christine A. 1989. Feminist Jurisprudence:The Difference Method Makes.

Stanford Law Review. 41(3):751-784. Stanford Law Review. USA.

MacKinnon, C.A. 1983. ‘Feminism, Marxism, Method and the State: Toward Feminist
Jurisprudenc’ in Feminist Legal Theory. Katharine T. Bartlett and Rosanne Kennedy.
(ed). Westview Press Inc. USA.

MacKinnon, C.A. 1984. ‘Difference and Dominance’in Feminist Legal Theory.

Katharine T. Bartlett and Rosanne Kennedy(ed). Westviw Press Inc. USA.

MacKinnon, C.A.1987. ‘Difference and Dominance: On Sex Discrimination’ in

Feminist Legal Theory Foundations. D. Kelly Weisberg(ed.). Temple University
Press. USA.

Mason, J. 2002. Qualitative Researching. Sage Publications. UK.

38
Maxwell, D. 1992. Gender Differences in Mediation Style and Their Impact on
Mediator Effectiveness. Mediation Quarterly. 9(4):353-364. Jossey Bass Publishers.
USA.

Maxwell, J. Maxwell, D. 1989. Male and Female Mediation Styles and their
Effectiveness. Paper presented at the National Conference on Peacemaking and
Conflict Resolution. Montreal. Canada.

Maxwell, Nancy G. 1992. The Feminist Dilemma in Mediation. International Review

of Comparative Public Policy. 4(1):67-84. JAI Press inc.

McPhail, Beverly A. Busch, Noël Bridget. Kulkarni, Shanti. Rice, Gail. 2007.
Intimate Partner Violence An Integrative Feminist Model: The Evolving Feminist
Perspective. Violence Against Women. 13:817. Sage Publications. UK.

Mediation Boards (Amendment) Act No. 15 of 1997. Government of Sri Lanka.

Mediation Boards Act No. 72 of 1988. Government of Sri Lanka.

Menard, Anne E., Salius, Anthony J. 1990. Judicial Response to Family

Violence:The Importance of Message. Mediation Quarterly 7(4): 293-302. Jossey-
Bass Inc. Publishers, USA

Millet, K. 1969. ‘Sexual Politics’ in Issues in Feminism, An Introduction to

Women’s Studies by Sheila Ruth (ed). Mayfield Publishing Company. USA.

Ministry of Justice.2003.A Guide to Community Mediation Programme and

Mediation Boards in Sri Lanka. Ministry of Justice, Law Reform and National
Integration. Colombo.

Minow, M. 1988. ‘Feminist Reason:Getting It and Losing It’ in Feminist Legal

Theory.
Katharine T. Bartlett and Rosanne Kennedy(ed). Westview Press Inc. USA.

Moore, C.W. (2003). The Mediation Process Practical Strategies for Resolving
Conflict. Jossey-Bass. USA.

Moser, C.O.N.1989. Gender Planning in the Third World: Meeting Practical and
Strategic Gender Needs. World Development. 17(11):1799-1825. McGill University.
Canada.

39
Mulcahy, Linda. 2001. The Possibilities and Desirability of Mediator Neutrality -
Towards an Ethic of Partiality?. Social & Legal Studies. 10(4):505-527.
University of London. UK.

Naved, R. T., & Persson, L. Å. 2005. Factors associated with spousal physical
violence against women in Bangladesh. Studies in Family Planning. 36: 289-300.
Wiley-Blackwell. USA.

Northrup T.A. 1991. Relationality and Self-Interest: The Implications of Gender for
Conflict Theory. Paper presented at the Conference on Gender and Conflict, George
Mason University.USA.

Panchanadeswaran, S. Koverola, C. 2005. The voices of battered women in India.

Violence Against Women. 11:736-758. Sage Publications. UK.

Paquin, G. W. 1992. Coping and disputing with neighbors. Journal of Applied

Social Psychology 22:1852-70. Wiley-Blackwell. USA.

Pearson, J. 1997. Mediating When Domestic Violence Is a Factor:Policies and Practices

in Court-based Divorce Mediation Programs. Mediation Quarterly. 14(4):319-335.
Jossey-Bass Publishers. USA.

Pennell, Joan. Francis, Stephanie. 2005. Safety Conferencing: Toward a

coordinated and Inclusive Response to Safeguard Women and Children. Violence
Against Women. 11:666. Sage Publications. UK.

Perrey, Linda. 1994. Mediation and Wife Abuse:A Review of the

Literature.Mediation Quarterly. 11(4):313-327. Jossey-Bass. USA.

Prevention of Domestic Violence Act No. 34 of 2005. Government of Sri Lanka.

Reinharz, S. 1992. Feminist Methods in Social Research. Oxford University

Press. UK.

Rifkin, J. 1984. Mediation from a Feminist Perspective: Promise and Problems.

Law and Inequality 21(2). University of Minnesota. USA.

Sagot, M. 2005. The critical path of women affected by family violence in Latin
America: Case studies from 10 countries. Violence Against Women. 11:1292-
1318. Sage Publications. UK.

Schuler, Sidney Ruth, Bates, Lisa M. Islam, Farzana. 2008. Women’s Rights,
Domestic Violence, and Recourse Seeking in Rural Bangladesh. Violence Against
Women. 14(3): 326-345. Sage Publications. UK.
40
Shaffer, M. 1988. Divorce Mediation:A Feminist Perspective.University of Toronto
Faculty of Law Review. 46(1):162-200. University of Toronto. Canada.

Shramajibee Mahila Samity. 2003. “Shalishi” in West Bengal A Community-Based

Response to Domestic Violence. Economic & Political Weekly. 38(17):1665-1673.
Economic & Political Weekly.USA.

Silverman, D. 1997. Qualitative Research Theory, Method and Practice. Sage

Publications. UK.

Smart, C.1986. Feminism and Law: Some problems of analysis and strategy.
International Journal of the Sociology of Law. 14(2):109-23.

Stamato, Linda. 1992. Voice, Place and Process: Research on Gender, Negotiation
and Conflict Resolution. Mediation Quarterly. 9(4). Jossey- Bass Publishers.
USA.

Stanley, L. Wise, S. 1990. ‘Method, methodology and epistemology in feminist research

processes’ in Feminist Praxis. Liz Stanley (ed). Routledge. London.

Storie, F. 2002. Report: Review of the Community Mediation Program in Sri

Lanka. Governance and Institutional Strengthening Project. Unpublished.

Stubbs, Julie. 2007. Beyond apology? Domestic violence and critical questions for
Restorative justice. Criminology & Criminal Justice. 7(2): 169–187. Sage
Publications. UK.

Taub, N. and Schneider, E.M. 1982. ‘Women’s Subordination and the Role of Law’ in
Feminist Legal Theory Foundations. D. Kelly Weisberg(ed.). Temple University
Press. USA.

Tishler, Carl L. Bartholomae, Suzanne. Katz, Bonnie L. Landry-Meyer, Laura.

2004. Is Domestic Violence Relevant? An Exploratory Analysis of Couples Referred
for Mediation in Family Court. Journal of Interpersonal Violence. 19(9):1042-
1062. Sage Publications. UK.

Wall Jr., James A. Stark, John B., Standifer, Rhetta L. 2001. Mediation: A Current
Review and Theory Development. Journal of Conflict Resolution. 45(3):370-391.
Sage Publications. UK.

Watson, C. Kasten, B. 1989. Separate Strengths? How men and women negotiate.
CNCR Working Paper Series. Rutgers University, Newark NJ.

41
Weingarten, H.R. Douvan, E. 1985. Male and Female Visions of Mediation.
Negotiation Journal. 4:349-358. Harvard Law School. USA.

Weiss, M. Young, C. 1996. Feminist – Equal Rights Or Neo-Paternalism?. Cato Policy

Analysis. 26. Cato Institute.

Wickramasinghe, M. 2000.From Theory to Action Women Gender and

Development. Colombo. Friedrich Ebert Stiftung. Colombo.

42