Mediation in Domestic Violence Cases: Balancing Confidentiality, Safety, and Justice

Introduction

Domestic violence (DV) is not merely a private family matter but a serious human rights violation that affects the physical, emotional, and economic well-being of survivors, predominantly women. In India, the Protection of Women from Domestic Violence Act, 2005 (PWDVA) marked a watershed by recognising domestic violence in its broadest sense — physical, sexual, verbal, emotional, and economic abuse and providing civil remedies such as protection orders, residence rights, and monetary relief.

At the same time, the global shift towards Alternative Dispute Resolution (ADR), particularly mediation, has raised questions about its role in domestic violence disputes. Mediation is valued for its confidentiality, flexibility, and ability to preserve relationships. Yet, when applied to DV cases, it raises unique concerns about safety, power imbalances, and enforceability.

This paper explores the tension between mediation’s promise of collaborative resolution and the risk of retraumatisation or coercion for survivors, drawing on Indian law, comparative international practices, and emerging models such as shuttle mediation, online mediation, and court-annexed counseling.

Mediation and Domestic Violence in the Indian Context

The Legal Framework under the PWDVA, 2005

The PWDVA provides a civil law remedy, complementing the criminal provisions of Section 498A, Indian Penal Code. It allows survivors to approach Protection Officers, service providers, or courts for immediate reliefs. Importantly, the Act emphasizes speedy, non-adversarial remedies, making mediation appear attractive at first glance.

Family courts in India, governed by the Family Courts Act, 1984, are mandated to make efforts at conciliation in family disputes. Section 9 of the Act empowers courts to attempt settlement. Moreover, Section 89, Code of Civil Procedure, 1908 permits courts to refer disputes to mediation.

However, whether DV cases are suitable for mediation is contested. The Supreme Court in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010) clarified that serious allegations of fraud, sexual offences, and cases involving physical violence are generally non-arbitrable or non-mediable.¹ This suggests a cautious judicial approach.

Key Concerns in Mediating DV Cases

1. Confidentiality vs. Safety

Confidentiality is a hallmark of mediation, creating a safe space for open dialogue. However, in DV cases, excessive emphasis on confidentiality may jeopardise safety. Survivors may be pressured to withdraw complaints or agree to unsafe settlements. The mediator must balance confidentiality with a duty to report imminent threats to life or safety.

2. Power Imbalances

DV is fundamentally about control and coercion. Mediation assumes parties negotiate on equal footing, but abusers may misuse the process to extend control, intimidate survivors, or evade accountability. Without safeguards, mediation risks re-victimizing survivors.²

3. Enforceability of Mediated Settlements

A mediated settlement in DV cases must have legal enforceability to protect survivors. The PWDVA already provides for enforceable protection orders under Section 18, monetary relief under Section 20, and residence rights under Section 17. Integrating mediated settlements into judicial orders ensures compliance and prevents abusers from exploiting informal agreements.

Comparative Global Practices

United States

Many U.S. states mandate screening protocols to determine whether mediation is appropriate in DV cases. Courts often use shuttle mediation (separating parties) or impose mediator training in domestic violence dynamics.³

United Kingdom

Family mediation in the UK includes Domestic Abuse Screening before mediation is permitted. If abuse is identified, cases are often diverted to court. The emphasis is on safeguarding over reconciliation.⁴

International Trends

• Australia: Courts apply “family dispute resolution” cautiously, with exemptions in DV cases.

• Canada: Mediation is permitted only where there are safeguards and informed consent.

• Council of Europe: The Istanbul Convention (2011) warns against mandatory ADR in DV cases, underscoring survivor safety.

Alternative Models for Safe Mediation in DV Cases

1. Shuttle Mediation

   • Parties are kept in separate rooms, with the mediator shuttling between them.

   • Reduces direct intimidation and allows survivors to speak more freely.

2. Online Mediation (ODR)

   • Digital platforms create physical distance, reducing risk of intimidation.

   • Useful during COVID-19 and for survivors in remote areas.

3. Court-Annexed Counseling and Family Mediation Centres

   • Family courts in India often use counselors, psychologists, and NGOs to provide mediation-like interventions.

   • Integrating protective orders with counseling ensures survivor safety while offering reconciliation where appropriate.

     
     

Recommendations

1. Mandatory Screening for Suitability

   • Courts and mediators must adopt standardized screening tools to assess whether a case is safe for mediation.

   • Indicators of coercive control, severe physical violence, or risk to children should disqualify cases.

2. Specialized Training for Mediators

   • Mediators must receive training in trauma-informed and gender-sensitive approaches.

   • Awareness of psychological abuse, financial coercion, and survivor needs is crucial.

3. Integration of ADR with Protective Orders

   • Mediated settlements should be incorporated into enforceable court orders under the PWDVA.

   • Survivors must retain the right to return to court if agreements are violated.

4. Hybrid Approaches

   • Med-Arb or Arb-Med-Arb is unsuitable for DV due to power asymmetries.

   • Instead, court-annexed counseling and NGO-supported mediation may provide safer, monitored alternatives.

Conclusion

Mediation, while valuable in family and commercial contexts, cannot be transplanted wholesale into domestic violence disputes. The very dynamics of DV rooted in power, control, and fear create challenges that mediation’s consensual model struggles to address.

Yet, with mandatory screening, trained mediators, and integration with protective legal mechanisms, mediation can serve a limited but meaningful role: not as a replacement for justice, but as a complement to protective remedies under the PWDVA.

Ultimately, mediation in DV cases must prioritise one principle above all others: the safety and empowerment of survivors. Only then can it strike the delicate balance between confidentiality, justice, and protection.

References

1. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co., (2010) 8 SCC 24.

2. Busch, R. & Folger, J., The Promise of Mediation (1994).

3. Nancy Ver Steegh, Family Mediation and Domestic Violence: Policy and Practice, 46 Fam. Ct. Rev. 454 (2008).

4. UK Ministry of Justice, Family Mediation and Domestic Abuse Guidance (2019).

5. The Protection of Women from Domestic Violence Act, 2005 (India).

6. Council of Europe, Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence, 2011.