THREATS AND VIOLENCE IN AND AFTER MEDIATION:
WHAT’S HAPPENING IN UTAH AND HOW TO RESPOND
By Stephen D. Kelson
On January 30, 2013, Arizona attorney Mark P. Hummels and his client were shot during a mediation session by the opposing pro se litigant in a contractual business dispute. Both died as a result of the shooting. While the tragedy received substantial national press, little action was taken it its wake. However, just because you don’t hear about threats and violence in mediation, it does not mean that it doesn’t occur.
To better evaluate and understand the degree of threats and violence experienced in mediation, members of the Utah mediation community were invited to participate in an on-line survey (the “Survey”). This article provides a brief summary of responses to the Survey, a glimpse into threats and violence experienced by Utah mediator during and after mediation, and reported techniques and interventions used by Utah mediators to de-escalate tensions and respond to threats and violence.
- Studies of Threats and Violence in and Following Mediation.
Very limited research exists on the subject of threats and violence that occurs during or immediately after mediation. However, for more than twenty years, the author has studied threats and violence against the legal profession and methods utilized in response. To date, 29 statewide surveys have been conducted either independently or through state bar associations, regarding threats and violence against the legal profession. The results provide a rare insight into the nature and frequency of work-related threats and violence experienced by members of the legal profession, the overwhelming majority of which have never been publically reported. Some respondents to the statewide surveys have reported threats and violence which occurred in or soon after mediation. For example:
- The opposing party [known to carry guns and use them to threaten people] followed me after mediation.
- I attended a divorce mediation with my client which was unsuccessful . . . . [M]y client went home after the mediation. Her husband, still angry over the mediation, beat her to death with a baseball bat and then called me to let me know . . . . [I] was terrified that he was heading my way after calling . . . . He ended up killing himself.
- At mediation, [the husband] stormed into the room in which my client and I were situated and charged toward me yelling and attempting to reach me over the table. The mediator had to physically intervene and terminate the mediation.
- Both instances the opposing party lunged at me from across the table, once at mediation and once while taking a deposition.
- [T]wice opposing party in divorce case tried to run me over in his lawyer’s parking lot after mediation.
While the statewide state surveys do not focus on or include questions regarding mediation or threats and violence in mediation, descriptions provided identify that some level of threats and violence are occurring in or soon after mediation.
- The Raines Study.
From 2012 through 2015, Susan S. Raines, a professor of conflict management at the School of Conflict Management, Peacebuilding, and Development at Kennesaw State University in Georgia, and Yeju Choi, a doctoral student in international conflict management at Kennesaw State University, conducted the first study that examined the occurrence of violence against mediators and/or participants during or following mediation sessions and how mediators responded to such violence (the “Raines Study”). The participants of the Raines Study consisted of attendees at the national conference of the Association for Conflict Resolution held in Minneapolis in 2013 and in Cincinnati in 2014, registered court-connected mediators in Georgia, and members of the New York mediators’ online listserv discussion group. The full results of the study can be obtained at https://onlinelibrary.wiley.com/doi/full/10.1111/nejo.12160.
For purposes of the Raines Study, “‘mediation violence’ includes physical violence, or threats of such violence, against people or property that occurs during a mediation session or immediately afterward (i.e., as parties leave the mediation).” The Raines Study received a total of 113 responses from mediators from 12 states (not including Utah).
- The 2018 Survey.
To better evaluate and understand the degree of threats and violence experienced by mediators in Utah, from October 2018 through November 2018, mediators listed on the Utah Court’s list of Court Qualified Mediators (“Court Roster Mediators”) and members of the Utah Council on Conflict Resolution (“UCCR”), were asked to participate the Survey. The Survey was conducted independently by the author, using an email list created from online sources, and administered through http://www.surveymonkey.com.
- Survey questions.
With permission from Professor Raines, the author utilized the same survey used in the Raines Study. The Survey consisted of seventeen questions, including six open-ended responses. The close-ended questions included:
- Approximately how many cases have you mediated (as a mediator) in your career?
- How many years have you been mediating?
- What type of case do you mediate most often?
- Do you do most of your mediation work in Utah?
- Have you ever mediated a case in which one or more of the parties threatened violence against the other?
- If you answered Yes [to the preceding question], how many times has this occurred in your career?
- Have you ever mediated a case in which you were physically threatened as a mediator?
- If you answered Yes [to the preceding question], how many times has this happened in your career?
- As a mediator, have you ever . . . .
- In your experience, has the incidence of violence in mediation increased over the past few years?
- Please tell us your gender.
The six open-ended questions requested personal examples or stories (excluding any identifying information that could jeopardize party confidentiality), regarding:
- An episode in which one or more of the parties threatened violence against the other;
- A story to illustrate what occurred when the participant mediator was physically threatened;
- What strategies the mediator uses to diffuse anger or deal with potentially violent situations;
- Ideas for improving the safety of parties during the mediation process;
- Ideas for improving the safety of mediators during the mediation process; and
- Any stories or problems related to violence encountered in mediation.
- Participant information.
The Survey received a total of 102 responses from in-state, Utah mediators. Approximately 43.2 percent of the participants were male; 55.8 were female; and 1 percent declined to state their gender. Mediation experience levels of the Survey participants varied, with more than 28 percent of participants reporting that they mediated more than 500 cases. SeeTable 1. The broad range of experiences from participants provides an extensive wealth of knowledge and stories to the Survey.
|Number of Cases||Reponses||Percentage|
The Survey also asked participants how long they had been practicing mediation. SeeTab 2. It should be noted that years of mediation practice does not necessarily correlate with experience levels. Many mediators may only mediate part-time or occasionally. However, the data provides useful information regarding our mediation community and for further analysis of the Survey result.
Years of Mediation Practice
|Years of Practice||Reponses||Percentage|
|Less than 1 year||1||1|
Participants were also asked about the types of cases they mediate most often. Prior mediation research indicates that the type of mediation may be correlated with the likelihood of violence, and issues of violence and safety appear to arise more frequently in family law cases. By far, the largest area of mediation practice reported by participants is family/divorce mediation (60.8 percent), followed by commercial/civil mediation (20.6 percent). SeeTable 3.
Areas of Practice
|Areas of Practice||Reponses||Percentage|
|Other (Small Claims, Child Welfare, Intellectual Property, Real Estate, etc.)||7||6.9|
III. Results of the Utah Survey.
Key survey questions requested participants’ experiences of threats in violence in and following mediation, including threats and violence between parties, against the mediator, and other threatening events during mediation.
- Threats and Acts of Physical Violence between Parties.
One of the Survey’s chief question asked mediators whether they ever mediated a case in which one or more of the parties threatened violence against the other. Of 97 responses to this question, 34 (35.1 percent) of the participants reported observing such occurrence. Of these 34 participants, 24 reported threatened violence occurring 1-3 times, 4 reported 3-4 occurrences each, 3 reported 6-10 occurrences, and 3 reported more than 10 occurrences. Of these participants, 24 (70.6 percent) identified that they most often mediate divorce cases. Participants provided more than 30 examples where the parties threatened violence against the other. Some reported examples in the participants’ own words include:
- In a divorce mediation a man brought his mother as his support person. His wife and mother kept making rude comments to each other. The wife started going across the table for her mother-in-law.
- One party threated slashing the tires of the other after mediation.
- Credible reference to a mob hit.
- [In a physical assault case with a subsequent murder], [d]efendant and his father threatened revenge (physical harm) during the mediation [against the opposing party]. Their attorney was complacent and even supported the threat.
- [O]ne family member tried to run down another in the parking lot of the business.
- The wife reached over the table to hit the husband ….
- One party had harmed the other party’s pets and threatened similar violence toward that party if the divorce were to take place.
- A manager threatened to tase a tenant in mediation.
- Threats and Acts of Physical Violence against the Mediator.
Participants were asked if they had ever mediated a case where they were physically threatened. Only 3 participants indicated that his had occurred, and all three indicated that it had occurred 1-3 times. One participant related:
One of the parties started to yell and threatened to hit me as the mediator because the party thought I was favoring the other party which was untrue. … Luckily a bailiff overheard the yelling and came into the mediation room.
Fortunately, no participant of the Survey reported ever being the victim of physical violence as a mediator (including being physically struck, punched or slapped during mediation).
- Descriptions of Threatening Events in Mediation.
The Survey asked participants to identify the forms of threats observed and/or experienced during mediation. SeeTable 4. A total of 97 participants responded to this question. Participants were far less likely to experience threats to themselves than they were to witness parties threaten each other or others. A total of 4 mediators (4.1 percent) experienced violence from an attorney against another party. Eight mediators (8.2 percent) had been blocked from leaving a room, and 6 mediators (6.2 percent) reported receiving verbal or written threats against them or their family members. A total of 9 mediators (9.3 percent) mediated cases where it was known that a party was carrying a weapon. Additional responses are identified below in Table 4.
Description of Threat
|Been physically struck, punched or slapped during a mediation?||0||0|
|Been blocked from leaving the room by one or more parties?||8||1|
|Seen a party throw something at the other party?||9||2|
|Seen a party punch a wall or otherwise vent violently without hurting anyone?||22||1|
|Received verbal or written threats against you or your family members?||6||0|
|Accompanied a threatened party to a domestic violence shelter or other place after mediation?||8||0|
|Called law enforcement to convey a threat against a party?||10||0|
|Called law enforcement or child protective services to convey a threat against a child?||9||1|
|Called law enforcement to convey a threat against yourself?||1||0|
|Stood between a violent party and the other party?||22||1|
|Experienced violence from an attorney against you or the other party?||4||3|
|Mediated with a party who disclosed they were bi-polar or psychitzophrenic?||51||3|
|Mediated between parties with a history of physical abuse against one another?||71||3|
|Mediated between parties with an active protective order?||64||7|
|Mediated between parties who brought weapons to mediation?||9||20|
|Feared for the safety of one or more parties as they left the mediation location?||40||5|
|Reported abuse or violent behavior to a judge in the case you were mediating?||4||0|
|Wanted to report actual or threatened violence in a case but were unable to do so due to confidentiality rules?||6||5|
- Suggested Strategies for Preventing and Defusing Threats and Violence.
Participants were asked to share strategies and ideas for preventing violence and improving the safety of parties and mediators during the mediation process. Several recommendations from Utah mediators are the same or similar to those recommended by participants of the Raines Study. Below are some of the recommended strategies presented by Utah mediators:
Pre-screening for Potential Threats and Violence. Review the court records. Speak with the parties prior to mediation. Many pre-screening questionnaires exist for mediators to ascertain the existence of domestic violence in divorce cases. For non-domestic cases, pre-screening calls allow the mediator to get to know the parties and counsel, ascertain any potential safety issues, and allow the mediator the opportunity to plan what strategies may be affective, not just to defuse threats and violence, but to assist the parties to reach resolution at mediation.
Reflective Listening, Reframing and Positive Language. Words matter. Multiple mediators described the benefits of reflective listening, where the mediator explicitly acknowledges the emotional message has been received, allowing the parties to vent, and then to explain the reasons behind their emotions to move the mediation forward toward resolution. A calming presence and a soft voice are often very effective in calming an angry party.
Staggering Arrival and Leaving Times. This strategy allows the parties to arrive and leave the mediation without confrontation. The parties can still participate in a joint session, but is aimed at preventing them from directing anger, threats and/or violence at one another. It is recommended having the threatening/violent party wait 5 minutes before leaving the mediation, allowing the other party to leave without a potential confrontation.
Shuttle Mediation and Caucuses. Sometimes it is better, or required, to have the parties participate in mediation from separate rooms. Respect the parties’ wishes to be in different rooms. Start with the parties separated or separate them when needed. Make sure there is room to do so.
Mediate in a Safe Place. Many mediators recommend, where safety is a concern, to conduct the meditation in a public facility where security personnel available. One mediator indicated having the number for court security programmed in the cellphone in the event of an immediate need. Admittedly, many mediators expressed frustration of a lack of secure, public facilities with conference rooms where mediations can be conducted.
Seating Arrangements. Keep the attorneys closest to the mediator and the mediator nearest the door.
Have a Plan. Multiple Survey participants expressed the necessity to have plan about what a mediator will do in the event of threats and violence. This includes recommendations that mediators obtain training and education regarding signs of escalation behavior, personality disorders and anger management. The Raines Study discusses the importance of mediation to respond to de-escalate the situation and assist the parties as they seek to overcome underlying problems. It further notes that previous studies indicate that family mediators often receive this training, but many other mediators get much less training focused on violence prevention and de-escalation.
Take Charge. Pay attention to small acts of aggression and address them immediately. Address power imbalances during the mediation as necessary.
Terminating the Mediation. Where none of the strategies employed by the mediator to defuse threats and violence are assisting, and safety is at issue, do not allow the mediation to continue. Identify that the parties are at an impasse and terminate the mediation.
Many mediators regularly work in very contentious and highly emotional conflicts. The Survey’s results show that many Utah mediators have experienced threats and violence during mediations. The Survey also illustrates the importance of mediation training to properly conduct mediations, to assess and utilize skills to de-escalate tensions and respond to threats and violence. Recognizing the potential of threats and violence and employing strategies to prevent and properly respond can assist to avoid and prevent the escalation of anger, threats and violence from occurring in mediation. As with the Raines Study, the hope is that the results of the Survey will stimulate further discussion regarding how to best prepare mediators for these difficult and potentially dangerous cases.
Susan R. Raines and Yeju Choi, When Clients Throw Punches and Chairs: How Mediators Respond to Violence, Negotiation J. 267(October 2016).
Id. at 269.
I’d like to thank participant Court Roster Mediators and UCCR members for their input and responses to the Survey.
Raines, supra note 1, at 277.
Id. at 289 – 291.
Id. at 293 (citations omitted).