DOMESTIC VIOLENCE SCREENING PROTOCOL FOR

State Court Administrative Office

Office of Dispute Resolution

DOMESTIC VIOLENCE SCREENING

PROTOCOL FOR MEDIATORS OF

DOMESTIC RELATIONS CONFLICTS

October 2023

MICHIGAN SUPREME COURT  OFFICE OF DISPUTE RESOLUTION

Table of Contents

A. Key Considerations of Domestic Violence Screening ...............................................................5

1. Protocol purpose ..................................................................................................................5

2. Why mediating cases involving domestic violence is problematic ....................................6

3. Presumption against mediating if domestic violence exists ...............................................7

B. Domestic Violence Screening Questionnaire ............................................................................7

C. Mediator’s Initial and Ongoing Screening ..............................................................................16

1. Initial screening .................................................................................................................16

2. Ongoing screening ............................................................................................................17

D. Preparing for the Screening Interview ....................................................................................18

1. General considerations .......................................................................................................18

2. Talking with the parties about screening ...........................................................................18

3. Remote screening ...............................................................................................................19

E. Completing the Screening Questionnaire with the Parties .......................................................19

1. Working with the questionnaire .........................................................................................19

2. Sample introductory statement about the questionnaire ....................................................20

F. Concluding Mediation or Continuing Mediation with Accommodations ................................21

1. Active court or parole order, or open child abuse or neglect case .....................................21

2. Party is in immediate danger..............................................................................................21

3. No immediate danger, but fear, violence, intimidation, or control is disclosed ................21

4. Accommodations for continuing mediation.......................................................................22

5. Lack of capacity to mediate ...............................................................................................24

G. Exploring Safety Options .........................................................................................................24

1. Calling for help ..................................................................................................................24

2. Additional ways to address safety concerns ......................................................................25

H. Safely Concluding Mediation ..................................................................................................26

1. General considerations .......................................................................................................26

2. Concluding mediation during initial screening ..................................................................27

3. Concluding mediation after initial screening .....................................................................28

4. Concluding mediation without mentioning domestic violence .........................................29

Appendices

1. Screening Questionnaire ................................................................................................. A-1

2. Mediator Standards of Conduct – Safety of Mediation ............................................... A-10

3. Examples of Protective Provisions in Custody and Parenting Time Agreements ........ A-11

4. Scripts ........................................................................................................................... A-13

5. Flyer: “Is Mediation Right for You” ............................................................................. A-16

6. Court Responsibilities ................................................................................................... A-19

7. Michigan Statutory Domestic Violence Screening Requirements ................................ A-22

8. Abbreviated Questionnaires .......................................................................................... A-23

Acknowledgments..................................................................................................................... A-34

Contact Information .................................................................................................................. A-35

Domestic Violence Screening Protocol

for Mediators of Domestic Relations Conflicts

Special Note:

This update of the Domestic Violence Screening Protocol is adopted after the Covid-

19 pandemic, a time in which nearly all mediation sessions and contacts with parties are

being conducted by remote means through tele-conferencing and video-conferencing

platforms such as Zoom®, Skype®, and Microsoft Teams® meetings. The guidance that

follows applies equally to both remote means of conducting screening and to conducting

screening in person.

Given the ongoing experience and evaluation of remote mediation services, mediators

and others using this Protocol are encouraged to provide ongoing input to the SCAO for its

consideration in improving the practices recommended in this document. Comments may

be sent to: [email protected].

A. Key Considerations of Domestic Violence Screening

1. Protocol purpose

The purpose of this screening protocol is to protect the safety of mediation participants

and the integrity of the mediation process. The protocol is designed to identify parties involved

in divorce or child custody actions for whom mediation may not be suitable because of domestic

violence or child abuse, and to maximize safety and self-determination in the mediation process.

The protocol uses the terms “domestic violence” or “domestic abuse” to mean a pattern

of behavior characterized by the use of various tactics, both criminal and non-criminal, to control

and coerce an intimate partner by fear and intimidation, which may or may not be apparent to

outside observers. An ever-present threat of physical or sexual violence is the ultimate coercive

tactic, although this threat may be carried out only infrequently, if at all.

Besides acts and threats of physical and sexual violence, abusers use money, children,

isolation, and emotional and psychological abuse to control their spouses or partners and to get

their way. Other tactics include: belittling their partners; threatening self-harm if the partner

leaves; interfering with their partners’ work or educational opportunities; stalking; and harming

pets or property. Some abusers harshly enforce strict household rules, or closely monitor their

partners, restricting their access to transportation or means of communication. Each abuser has a

unique pattern of coercion that is best known to the abused partner.

Some abused individuals will readily talk about the violence that they are experiencing or

have experienced if they feel safe and supported. However, many others may not identify their

experiences as “domestic violence” when asked about abuse in their lives, or they may disclose

information incrementally, as trust in the person asking the question develops.

Some abused individuals may not disclose abuse in their relationships out of shame, fear

of retaliation, or fear of negative consequences resulting from such disclosures. Alternatively,

abused individuals may be reluctant to disclose abuse because they have experienced negative

responses to disclosures of abuse in the past.

The ability and willingness to disclose abuse may be enhanced where abused individuals

believe that the inquiring professional will believe their statements, that it is safe to share, and

that sensitive information will be handled responsibly by those who respond after the disclosure

is made. Inquiries about specific behavior (rather than inquiries about “domestic violence”) may

yield important information in cases where the abused individual has not identified the

perpetrator’s conduct as abusive. If abuse is disclosed or identified, it is common for abused

individuals to minimize it, or to accept some responsibility for it. Minimizing and accepting

responsibility is sometimes a coping mechanism that makes the abuse less frightening to abused

individuals by framing it as something within their control.

This protocol contains many strategies and best practice recommendations for safely

identifying and responding to domestic abuse and other impediments to mediation. These

strategies include:

a. Questions about the dynamics of the relationship.

b. Questions about specific behaviors, including various tactics of abuse.

c. Follow-up questions to clarify participants’ answers.

d. Explanations about the limitations on confidentiality.

e. Information about what will be done with the information that is disclosed.

Employing these strategies can help mediators determine whether a case should be mediated and

if not, to safely conclude the process.

2. Why mediating cases involving domestic violence is problematic

Mediation presumes that with the help of a mediator, participants can achieve and

maintain a balance of power sufficient to reach a mutually satisfactory resolution of a dispute.

The mediation process and resulting agreement can be dangerous if the imbalance of power is

great or if the imbalance is unrecognized for these reasons:

a. When domestic violence is present, the abuser’s desire to maintain power and

control over the abused party is inconsistent with the method and objective of

mediation. Fear of the abuser may prevent the abused party from asserting their

needs. Also, the occasion of mediation may give abusers access to victims, exposing

that party and the mediator to a risk of violence at the mediation site. Statements

made by the abused party during the process may subject that party and others,

including children, to retaliation after or between the mediation sessions.

b. Mediator neutrality may support the abuser’s belief that the abuse is acceptable. The

forward looking nature of mediation may discourage disclosure and discussion of

past abuse, which in turn invalidates the abused party’s concerns and excuses the

abuser. This may result in agreements that are inherently unsafe.

c. A court’s ordering parties to try mediation may communicate to the abuser and the

abused party that the violence is not serious enough to compromise the parties’

ability to negotiate as relative equals. This message also may invalidate the

seriousness of the abuse, dilute abuser accountability, and result in inequitable or

unsafe agreements.

Mediation is not an appropriate process for all cases, and an agreement is not necessarily

the appropriate outcome of all cases referred to mediation.

Mediators must be able to identify cases that are not suitable for mediation, and refuse or

discontinue mediation in those cases.

3. Presumption against mediating if domestic violence exists

Cases in which domestic violence is present are presumed not suitable for mediation. This

presumption can be overcome, but only if the abused party desires to participate in mediation and

the circumstances of the individual case indicate that mediation will be a safe, effective tool for all

concerned.

The decision whether to order, initiate or continue mediation despite a presumption against

mediation should be made on a case-by-case basis. The most important factor to consider in

deciding whether to proceed with mediation is whether the abused party wants to mediate.

Mediation should not proceed if the abused party does not wish to participate. Other factors to

consider are:

a. Ability to negotiate for oneself.

b. Physical safety of the mediation process for all concerned.

c. Ability to reach a voluntary, uncoerced agreement.

d. Ability of the mediator to manage a case involving domestic violence.

e. Likelihood that the abuser will use mediation to discover information that can later be

used against the abused party, or to otherwise manipulate court processes.

Parties should be fully and regularly informed that continuing the mediation is a voluntary

process and that they may withdraw for any reason.

B. Domestic Violence Screening Questionnaire

A copy of the questionnaire appears on the following pages. A blank form for

printing/photocopying is included as Appendix 1.

Michigan Supreme Court

State Court Administrative Office

Office of Dispute Resolution

Domestic Relations Mediation Screening Questionnaire

Note: this interview guide is intended to be used solely in separate interviews with each of

the parties before scheduling or holding the mediation to determine if mediation is

appropriate for the parties.

This guide should not be provided to the parties with a request to have them complete and

return it to the mediator.

Mediator’s Introduction:

Is this a good time to talk about the mediation process?

Do you feel comfortable talking with me right now, or would you prefer that I call

back/reschedule?

It might take 10 to 15 minutes, or it might take a longer, so we want to make sure you have

enough time to share with me what you would like me to know.

I am going to ask some questions to better understand the background of your matter, and we’ll

go through some private information. This is a great opportunity for you to say whatever you

would like to say and share your goals and concerns. It’s best that [insert name] not be present

or able to hear our conversation. Are you in a place where you can talk privately about this?

If something comes up, or you no longer have privacy at any time and you need to reschedule,

just let me know and we will find another time to continue.

Also, as we talk, I’d like you to keep in mind that there are different ways we can discuss your

issues in mediation without physically meeting. The options include using a computer or

smartphone on a platform like Zoom®, or by video conference, or by conference call.

[Open ended introductory question] Please tell me a little bit about the two of you; what

brings you to mediation?

2. Do you want to mediate? If so, why? If not, why not?

3. Could you tell me about how the decision to separate or divorce was reached?

4. When you look back over time, how were decisions made in your relationship/marriage?

Can you give some examples?

5. What happens when you speak your mind and express your point of view to [insert name]?

Can you give some examples?

6. Has [insert name] ever interfered with your relationships with family or friends, or with

your children? Can you give some examples?

7. Has [insert name] ever made it difficult for you to have money you need for things for

yourself or the family? Can you give some examples?

8. When you and [insert name] disagree, fight and/or are angry with each other, what

happens?

There are different ways we can discuss your issues in mediation. The options include

meeting in person, or meeting remotely using a computer or smartphone on a platform like

Zoom®, or by video conference, or by conference call.

Do you have any concerns about

being in the same space, virtually or physically, with [insert name] or mediating with [insert

name]? [If Yes] Is there anything that we can do to address those concerns?

10. If you have an attorney, would you prefer that your attorney be present with you or

participate online or by phone, during the mediation session?

11. If video-conferencing is used for the mediation session, would you prefer if you and [insert

name] were in separate

breakout

rooms where you and [insert name] could not see or hear

each other?

12.

If mediation were in person at a physical location, would

you prefer if you and [insert

name] arrived and departed at separate times or weren’t in the building at the same time?

13. [If the case is managed through a CDRP center] Another possible option is to use an

entirely online service called MI-Resolve. MI-Resolve is a program sponsored by the

Michigan Supreme Court. It allows the parties and the mediators to exchange messages

online to discuss the issues. Do you feel that your e-mails and chat conversation would be

secure and could not be monitored by the other party or anyone else?

Yes ___ No ___

14.

[If the mediator and parties are comfortable with available technology] Would you feel

more comfortable if the mediation took place over the telephone, internet, or by video

conference?

NOTE TO SCREENER: If there is a “yes” answer to any of the following

questions 15-29, consider informing the party that mediation may NOT be a

good fit. If the abused party still wants to mediate, continue through the

screening process.

15. Have there ever been any physical confrontations between you and [insert name]? Can you

tell me what happened?

16. Do you ever feel afraid of [insert name]? What are you afraid of? Tell me about the time

you felt most afraid.

17. Do you think that [insert name] has ever felt afraid of you? What do you think they were

afraid of?

18. Has [insert name] ever caused you to feel threatened or harassed, for example by: following

you; interfering with your work or education; making repeated phone calls to you; using

social media; sending you unwanted letters, emails, text messages, faxes, gifts; or anything

else? Can you tell me more about it?

19. Is there currently or has there ever been an order limiting contact between th

two of

you, for example, a Personal Protection Order or a No Contact Order? Can you tell

me more about this?

20. [If there is or was an order] Has there ever been a violation of the order, whether or not

the violation was ever reported? Can you tell me about it?

21. Have you or [insert name] ever applied for an order to limit contact between the two of

you, for example, a Personal Protection Order, which never went into effect?

Yes No

Can you say more about that?

22. Are either of you currently prohibited from contacting any other person by a Personal

Protection Order or other court order?

23. Has [insert name] ever pushed, shoved, hit, kicked, spit on, choked, strangled, restrained, or

pulled your hair? If so, tell me more about that.

24. Has [insert name] ever damaged or destroyed your property, or harmed or threatened to

harm your pets? What about your children’s property or pets? If so, tell me more about that.

25. Are there any guns or other weapons in either of your homes? If so, do you have any

concerns about them?

26. Has [insert name] ever used a weapon or any other object in a way that felt threatening to you

or your children? Can you tell me more about it?

27. Has [insert name] ever threatened to hurt or kill themselves? Can you tell me more about it?

28. Have you ever been afraid that [insert name] would kill or injure you or anyone else close

to you? Can you tell me more about it?

29. Have either of you been arrested for, charged with, or convicted of a

crime?

30. Do you feel you are in danger right now?

NOTE TO SCREENER: If there is a “YES” answer to question number 30,

discontinue the screening process, safely terminate the process, and explore

safety concerns. [See section H for assistance]

31. How are the children doing?

32. Do you have any concerns about the safety of the children? If so, tell me more about that.

33. Has [insert name] ever talked about taking the children away from you? Has [insert name]

ever interfered with or prevented you from seeing them? Please tell me more about that.

34. Has there ever been an investigation by Children’s Protective Services? Tell me more

about that.

35. Are either of you involved in a child abuse or neglect proceeding now? Tell me more

about that.

36. Is there anything I haven’t asked you about that you’d like to tell me?

37. [If appropriate and if attorney is not present] You have raised some important safety

concerns. Have you told your attorney what you’ve told me?

Yes No ____

[If No] It is generally important for your attorney to know about things we’ve talked about.

Is there a concern you have about telling your attorney?

38. Now that we have had a chance to discuss your situation and mediation, how do you feel

about going forward with mediation?

C. Mediator’s Initial and Ongoing Screening

Michigan Court Rule 3.216 requires that mediators make reasonable efforts throughout

the mediation process to screen for domestic violence. The court rule provides that:

(H)(2) The mediator must make reasonable inquiry as to whether either

party has a history of a coercive or violent relationship with the other party.

Throughout the mediation process, the mediator must make reasonable efforts to

screen for the presence of coercion or violence that would make mediation

physically or emotionally unsafe for any participant or that would impede

achieving a voluntary and safe resolution of issues. A reasonable inquiry includes

the use of the domestic violence screening protocol for mediators provided by the

state court administrative office as directed by the supreme court.

This court rule provision is taken nearly verbatim from the statutory language appearing

in MCL 600.1035. See Appendix 7.

The "Mediator Standards of Conduct” also requires ongoing screening to assess the

presence of an impediment that would make mediation physically or emotionally unsafe for any

participant, or that would impede the achievement of a voluntary and safe resolution of issues.

See Appendix 2.

1. Initial screening

Mediators have the opportunity to conduct the most extensive screening for domestic

violence without providing the abuser with access to the information disclosed by the other

party. Under no circumstance should information gathered from one party in a screening

interview be disclosed to the other party unless permitted or required by statute or court rule.

Mediators should conduct separate screening interviews with each party to determine

whether domestic violence is present.

Mediators must recognize that mediation is not an appropriate process for all cases and

that an agreement is not necessarily the appropriate outcome in all mediated matters, even if the

parties and counsel insist mediation is appropriate.

A key factor in this assessment is whether the participants can safely assert what they

believe is good for themselves and their children. Mediation should not be initiated, or if initiated

should not continue, unless all parties and the mediator believe that a safe and non-coercive

process will occur.

If domestic violence is identified, mediation should continue only when all of the

following conditions are present:

a. The abused party freely requests to participate in mediation and provides informed

consent to mediation.

b. The abused party has reviewed and demonstrated an understanding of the materials

provided concerning mediation.

c. The abused party has been advised to consult with an attorney and a domestic

violence services provider.

d. The abused party provides compelling reasons to mediate.

e. Accommodations can be put into place that will enable the parties to:

i) Speak up and negotiate for themselves.

ii) Feel safe and comfortable during and after the mediation.

iii) Reach an uncoerced, voluntary agreement.

f. The mediator has adequate training and expertise to undertake mediation where

domestic violence has been identified.

Even if the initial screening mechanisms do not reveal domestic violence, and especially

if domestic violence is identified and a decision is made to hold mediation, mediators must

continually watch for for its presence.

2. Ongoing screening

Ongoing screening is critical for these reasons:

a. Because domestic violence is about control over an intimate partner, abuse tactics

may first appear or escalate at times when an abuser perceives a loss of control.

Thus, abusive behavior may not appear until the abuser becomes fearful of losing

ground as mediation progresses. Abusers who initially appear charming or engaging

may shift to more overtly coercive tactics if they are unable to achieve their goals

through seemingly cooperative behaviors.

b. Particularly in cases where mediation takes place over a longer period of time,

changes in the parties’ circumstances may cause abuse tactics to appear or escalate.

Circumstances such as physical separation of the parties, the abused party’s

formation of a new relationship, or a court ruling that favors the abused party may

cause an abuser’s tactics to escalate as the abuser seeks to regain lost control in the

relationship.

During the course of mediation, the mediator may notice abusive or controlling behaviors

that were not revealed during the screening process. Behaviors that may be of concern include

threatening looks or actions, one party attempting to speak for or control the other party, or one

party dominating the sessions.

If mediation involves multiple sessions or if a period of time has elapsed between the

screening interview and the first mediation session, the mediator should inquire whether any

abuse has occurred in the interim.

If the mediator determines that mediation should not continue, or if a party decides to

withdraw from mediation for safety reasons, the guidelines for Safely Concluding Mediation

(Section H) can be followed.

D. Preparing for the Screening Interview

1. General considerations

a. The person conducting the screening must be trained in domestic violence screening

pursuant to SCAO Training Standards and Procedures.

b. Screening, whether in person or remotely, must be undertaken before joint sessions

are held. This guide should not be provided to parties with a request to have them

complete and return it to the mediator.

c. Screening of each party must be conducted separately, preferably scheduled at

different times and/or locations, regardless of whether it is in person or remote.

Interviewing one party directly after the other should be avoided. In no event should

parties be asked to wait in a room together if screening is conducted in person, or in

the same breakout room if screening is conducted remotely.

d. Screening should be conducted in an environment that allows the greatest degree of

privacy possible. Once a screening session begins, the session should not be

interrupted.

e. At the election of a party, screening may be conducted with the party’s attorney or

advocate present. To protect confidentiality, the other party or other party’s attorney

or advocate must not be present during the screening.

2. Talking with the parties about screening

a. When scheduling a screening, a mediator should inquire whether a party has any

safety concerns about coming to the screening location or communicating remotely.

Arrangements should be made to respond to the safety concerns of the parties. If

there are any safety concerns about coming to the screening location or conducting

the screening remotely, the mediator should consider determining the case not

suitable for mediation.

b. A mediator should observe each party’s behavior during the scheduling phone call or

remote communication, in the waiting room if the screening is conducted in person,

and throughout the screening to pick up cues that could indicate an abusive

relationship.

c. Consistent with applicable statutes and court rules, confidentiality must be

maintained during the screening process. In addition, the mediator must explain the

extent and limits of confidentiality for communications made during individual

conversations with each party.

d. A mediator should explain the goals and process of mediation.

A sample introduction appears at Section E(2).

3. Remote screening

a. Mediators should carefully consider whether to conduct screening in person or

remotely. When screening remotely the screener cannot be certain that the other

party is not present or listening during the screening, and this may compromise

safety, confidentiality, or a person’s ability to speak freely. Also, comfortable

rapport with the parties resulting in disclosure of abuse is less likely to be established

via remote screening.

b. If remote screening occurs, the screener should determine if the person they are

speaking with can speak freely. Examples include:

“I realize that it is not always safe for folks to share their concerns about

mediation (on the phone, via Skype®, through the web, etc.) so before we get

started, I’d like to be sure that it’s OK for me to talk to you about mediation

in your divorce case.”

“Are you free and safe for the next ____ minutes to honestly talk with me

about whether or not mediation is appropriate in your divorce proceedings?”

“If it is unsafe for you to talk right now, is there another time I can call when

it will be safe for you to talk freely?”

If talking on the phone is not a good option: “If talking on the phone is a

problem for you, what would be another way for us to discuss mediation?”

If the individual is presently safe, but expresses concerns about danger

arising during the call: “Is there a word or phrase you can say to me during

our conversation that will let me know you are unsafe? If that happens, is

there another time I can call you later? Is there another way for us to discuss

mediation in your case?”

E. Completing the Screening Questionnaire with the Parties

1. Working with the questionnaire

a. The mediator should complete the screening questionnaire to identify the parties’

ability to negotiate, tactics of abuse, coercion, threats by a party, and any impact of

the tactics on the other. The mediator should give the parties the opportunity to

express concerns about the mediation process and to assess whether mediation is an

appropriate way to reach an agreement about the issues in their case.

b. During the screening interview, ask questions slowly and wait for answers. Each

item in the screening questionnaire should be asked and fully explored. Ask follow-

up questions, if necessary, and note answers in the comment section. If counsel is

present, explain that the process will move faster if the screener proceeds without

interruption.

c. Do not make judgments about the truth of statements of abuse. Mediators are not

investigators. There is no need to establish the truth of what a party tells the mediator

during screening. The mediator’s role is to determine whether the case is suitable for

mediation.

d. Do not mediate divorce or custody issues during the screening. Also, never mediate

issues of violence and abuse.

e. It is important for participants to understand that mediation may not be the best

process for them, and that parties whose cases are deemed not suitable for mediation

will be considered to have fully complied with the court’s order for mediation by

participating in the screening process.

2. Sample introductory statement about the questionnaire

“The reason I speak with the parties individually is to give each of you the

opportunity to tell me about concerns you might have about mediation and

your situation. I will be asking you specific questions about how you and

[insert name] get along, so that we can assess whether mediation is a good

fit for your situation.

In general, I will treat all information provided during mediation sessions

as confidential. I won’t repeat any information to [insert name of the other

party, that party’s attorney] or even to your attorney without your

permission, unless there is a threat of harm to [insert name of other party,

that party’s attorney] or your attorney. I will not give information obtained

during this interview or during mediation to any outside person or

organization unless both of you agree in writing, with exceptions that are

covered in the court rules. Some of the exceptions are:

a. allegations of child abuse or neglect,

b. threat of bodily harm to another person, and

c. future criminal activity.

If you would like to read the court rule that lists other exceptions, I can

provide it to you.

The goal of mediation is for the two of you to reach an agreement on some

or all of the issues in your case. All agreements must be voluntary. My

role during mediation would be to help you reach an agreement, not to

make a decision or a recommendation to the court on the issues.

I am neutral in the sense that I am not advocating for either one of you, or

for a particular outcome. I would not give an opinion as to who is right or

wrong, or as to what the agreements should look like.

If we decide to continue mediation and use the usual process, I will meet

with you and the other party together [in person, or remotely through

[insert means]]. Another option would be to meet separately but in person.

I can’t give you legal advice. If you have counsel, I recommend that you

keep your attorney informed about the mediation process, seek legal

advice from your attorney, and have any of our material reviewed by your

attorney.”

3. If the parties have requested evaluative mediation, explain that if the parties do not reach

agreement on all contested issues, the mediator will include written recommendations for

settlement in a report that is provided only to the parties, and not the court. See MCR 3.216(I)(2).

F. Concluding Mediation or Continuing Mediation with Accommodations

This section presents several common scenarios that mediators may encounter upon

completing the screening questionnaire, along with suggested best practices for concluding

mediation or where appropriate, continuing with accommodations.

1. There is an active court or parole “no contact” order, a personal protection order, or an

open child abuse or neglect case.

Courts should not refer cases that have active personal protection orders, other “no

contact” orders, or an open abuse or neglect case without first conducting a hearing.

See Appendix 6 for a discussion of court responsibilities in referring cases to mediation.

If a case is referred to you with such an order, suspend the process to determine if the order

includes a provision to allow for mediation.

2. A party is in immediate danger

If at any time an individual indicates that he/she is in immediate danger, or has answered

“Yes” to the question, “Do you feel you are in danger right now?”, (question 30 in the screening

questionnaire), mediation should be concluded and the following steps should be taken:

a. Advise the parties that mediation is not appropriate, following the procedures in

Section H (Safely Concluding Mediation).

b. Ask the abused party if he/she is willing to talk with you about safety options. If so,

follow the procedures in Section G (Exploring Safety Options).

3. The abused party appears to be in no immediate danger, but discloses fear of the other

party, the presence of violence, intimidation, or control.

If a party is not in immediate danger, the case should nevertheless be presumed not

suitable for mediation if screening questionnaire answers indicate the existence of fear, violence,

control, coercion, or intimidation. The following steps should be taken:

a. Inform the abused party of your recommendation that mediation should not proceed.

b. Explore whether the abused party agrees or disagrees with your recommendation.

c. If the abused party agrees, inform both parties of the decision to conclude mediation,

following the procedures in Section H (Safely Concluding Mediation). There are no

circumstances under which mediation should proceed; the abusive party’s desire to

mediate is not relevant.

d. If the abused party believes that mediation should continue:

(1) Determine whether either party lacks the ability to negotiate under any

circumstances, or whether mediation could proceed with accommodations, See

F(4) below.

(2) Be sure that the abused party has provided compelling reasons to mediate, and

has freely requested and provided informed consent to mediation based on an

understanding of the information provided concerning the process.

(3) Advise the abused party to consult with an attorney and a domestic violence

service provider.

4. If the abused party nevertheless wishes to continue mediation.

a. Proceed only if accommodations can be put in place that will enable the parties to:

(1) Speak up and negotiate for themselves.

(2) Feel safe and secure during and after the mediation.

(3) Reach a voluntary, uncoerced agreement.

b. Talk with the abused party about what safety precautions they need in order to feel

safe, and consider their response to the questions 10-14 of the screening

questionnaire, regarding safety concerns and possible accommodations to the

mediation process. The accommodations must directly respond to the abused party’s

safety needs, concerns, and voluntariness. Even where accommodations are in place,

the mediator must continually reevaluate the safety of the situation for the abused

party and the abused party’s ability to exercise independent judgement. The mediator

should conclude the mediation if there are concerns for the abused party’s safety or

if the mediator believes that the abused party cannot negotiate for themselves or

reach a voluntary, uncoerced agreement.

c. Both parties agree to the accommodations.

d. The mediator has adequate training and expertise to continue mediation where

domestic violence has been identified.

e. The mediator continually assesses that the parties have the ability to negotiate

voluntarily and safely under the circumstances in which mediation will continue.

f. Possible accommodations that may provide a party with the ability to negotiate and

make voluntary decisions include:

(1) Require both parties to retain separate legal counsel.

(2) Suggest or require that one or both attorneys or an advocate for the abused or

vulnerable party be present during mediation.

(3) In the in-person setting, set up the room to address concerns about safety and

comfort. For example, ask the abused party if they would like to be seated

closer to the door or further from the door.

(4) State unequivocally that violence and intimidation are unacceptable behavior,

no matter what the reason for it. Establish ground rules for the mediation and

conversation between the parties to reduce fear and intimidation, without

disclosing confidential information shared by the abused party.

(5) Use alternative meeting configurations, such as meeting with the party’s

attorney present, meeting in separate rooms, or meeting at separate times.

(NOTE: If conducting mediation sessions with each party at separate times, do

not schedule the sessions back to back). For remote mediation via video-

conferencing, explore whether the abused party prefers to be placed in a

separate breakout room for the process.

(6) If not mediating at separate times, suggest that the abused party arrive 10

minutes after the abuser and leave 10 minutes before the abuser.

(7) Do not leave the parties alone together, even in the waiting room.

(8) Allow a support person for the abused party to accompany the abused party in

the mediation session and waiting room.

(9) Check with the abused party between sessions to assess safety and ability to

negotiate, including whether the party is comfortable with the agreements that

they have made.

(10) When mediating in a joint session, in person or remotely, use caucus as a safety

valve and a check on the process.

(11) Consider co-mediation in order to better oversee and direct the process in

difficult mediations. Co-mediation might be conducted by mediators reflecting

the gender of the parties, or involve specific professions of origin (e.g., financial

experts, mental health professionals, attorneys) as appropriate to the subject

matter of the mediation.

(12) Encourage the parties to craft an agreement that contains sufficient specificity to

promote safety and minimize opportunities for continuing abuse and control.

Examples appear in Appendix 3.

(13) Reassess whether any party feels coerced into an agreement.

5. A party lacks capacity for other reasons

a. Regardless of the existence of domestic violence or child abuse or neglect, screening

may reveal other circumstances that impede a party’s capacity to negotiate for

him/herself, or to give informed consent to an agreement.

b. If the responses to the screening questionnaire reveal impediments to mediation

other than domestic violence considerations, proceed with mediation only if the

process could go forward with additional support resources that address the specific

impediment to mediation.

G. Exploring Safety Options

A mediator should take all discussions of fear and safety seriously and ensure that there is

a safe and private area where the mediator and abused party can discuss safety options. Once the

decision has been made to conclude mediation, the following steps can be taken without

compromising mediator neutrality.

1. Calling for help

a. Most victims of domestic violence have a variety of methods that have helped keep

them safe in the past. However, if the mediator or the abused party has any questions

at all about safety, they can call a local domestic violence advocacy agency or the

National Domestic Violence Hotline for consultation.

Local agencies are listed by county at https://www.michigan.gov/som/0,1607,7-192-

29941_30586_240-2884--,00.html; and alternatively at Provider Directory |

MCEDSV, Michigan Coalition to End Domestic & Sexual.

The national Hotline number is 1-800-799-SAFE (7233); TTY 1-800-787-3224

b. If the abused party wants to call a local advocacy agency or the Hotline, the mediator

can offer the use of a phone for this purpose. Allow the abused party privacy in

making this call. Local programs and the Hotline have trained professionals who

offer confidential services and should be able to help the abused party discuss safety

options.

Suggested language for calling for encouraging a party to call for help:

“I am concerned for your safety. None of this is your fault. I would like

you to consider talking with a professional with experience in helping

people explore their safety options. In our community [NAME LOCAL

ADVOCACY AGENCY] can help people in your situation with

counseling, advocacy, support groups and counseling for your children.

They also can provide emergency shelter if you need it. The phone

number is _____________. You can also call the National Domestic

Violence Hotline at 1-800-799-SAFE (7233); TTY 1-800-787-3224. The

National Hotline can provide you with confidential advocacy and support

and also refer you to the nearest domestic violence program. You can use

my phone if you’d like.”

c. If the abused party does not want to contact a local agency or the Hotline, the party

can be asked whether he/she would like the mediator to call on the party’s behalf,

without disclosing identifying information about the party.

Local programs and the Hotline should be able to walk the mediator through some

basic safety strategies. The mediator should assure the abused party that the Hotline

is confidential and that the mediator will not disclose any personal information.

Suggested language if the party does not want to make a call her/himself:

“I am concerned for your safety and want to make sure that I am giving

you correct information. Would it be ok with you if I called a local

program or the National Domestic Violence Hotline to help me give you

some referrals and assistance in coming up with safety options? I will not

give them any identifying information about you.”

If the party declines an offer for the mediator to call the Hotline, the mediator should

not override this decision.

d. Mediators can always call a local program or the Hotline for general advice about

domestic violence questions outside of the context of a consultation with a specific

client.

2. Additional ways to address safety concerns

a. Offer the use of a phone so that the party can contact friends or family, if the party

wishes to do so.

b. Provide written information about domestic violence and child abuse, as well as

information about local domestic violence advocacy agencies and the National

Domestic Violence Hotline. Local agencies and the Hotline should be able to supply

written information free of charge. You can make this information available in

places where abused individuals can take it discreetly, such as in restrooms. If you

give this information to the abused party, only do this when the other party is

not present.

c. Explore with the party what they will do with any paperwork or written information

that they are taking home, especially if they still live with the abusive party.

d. Consider what the party will do when they leave the mediator’s office and where

they will go. Work with the party to explore safety options for the rest of the day.

Ask questions like:

“What is your mode of transportation and is it safe? Where is your car parked? Do

you have a safe place to spend the night?”

e. Offer the use of a phone to contact the police or to request an escort, if the party

wishes.

Suggested language for referral and assistance:

“Most communities have organizations that provide services to survivors

of domestic violence. These services often include counseling, advocacy,

support groups and [counseling for your children]. They also include

emergency shelter, if you need it. The phone number for our local

domestic violence advocacy agency is ___________. You can also call the

National Domestic Violence Hotline at 1-800-799-SAFE (7233); TTY 1-

800-787-3224. The National Hotline can provide you with confidential

advocacy and support and also refer you to the nearest domestic violence

program. Here are brochures and information for you to read over. Will

taking this information home with you be dangerous?”

H. Safely Concluding Mediation

1. General considerations

a. If the mediator determines that mediation is not safe, or if either party decides to

withdraw from mediation for safety reasons, the mediation should be concluded. In

this case, the mediator should check the appropriate box on the status report

provided to the court. To protect confidentiality, no further explanation should be

given to the court. The decision to conclude mediation should be communicated to

the clients as described below.

b. A decision to conclude mediation based on safety issues should be communicated to

the parties in separate, private conversations with each one. The mediator should

speak with the abused party first, addressing the following considerations:

(1) What safety arrangements are immediately necessary? This may include asking

for assistance from law enforcement or other security personnel, if the abused

party consents. Do not contact law enforcement against the wishes of the abused

party unless there is an emergency.

(2) How might the abuser respond to mediation being concluded? What safety

options should be explored for the time after the abused party leaves the

mediator’s location?

(3) Should arrangements be made for the parties to leave separately? If so, the

abused party should leave first, allowing a reasonable time before the departure

of the other party.

(4) Should the abused party’s destination or means of transportation be held

confidential from the other party?

Both parties should be informed that the report to the court will indicate only that the

case is not appropriate for mediation or that agreement was not reached, without any

further explanation.

2. Concluding mediation during initial screening

a. If only one party has disclosed domestic violence, the disclosing party may be told

that domestic violence is the reason for declining to pursue mediation further. To

preserve the disclosing party’s confidentiality, the non-disclosing party must be

given a different reason.

b. If both parties have disclosed domestic violence, the mediator may explain to each

party that domestic violence is the reason for declining to pursue mediation further.

To protect confidentiality, the explanation provided must be based solely on the

disclosure of abuse made by that particular party. The parties may also be given

another reason, in the mediator’s discretion.

c. Suggested language for concluding mediation during screening, directed to both the

abused and abusive parties:

“I have decided to conclude mediation in this case. Many cases are not

suitable for mediation. It is my experience that with situations like yours,

mediation does not work. [If necessary, insert reasoning appropriate to

each party, as described above.] This screening process fulfills the

requirement for court ordered mediation. I will be reporting to the court

only that this case is not suitable for mediation. I will not be giving the

court any further explanation. It is not a “failure” if you don’t continue

mediation and there are no legal repercussions for doing so. I would

suggest that you review this case with your attorney or seek legal advice

as to your next steps. Your options may include negotiation between your

attorneys, referral to the Friend of the Court, or asking the court for a

decision.”

3. Concluding mediation after initial screening (ongoing screening)

a. If domestic violence is revealed for the first time after the initial screening has been

completed and the parties have begun meeting together, the mediator should:

(1) Interrupt the proceedings and separate the parties. If the mediator was aware of

domestic violence prior to undertaking mediation, it is generally not appropriate

for the parties to participate in a session together. Consult with the abused party

first.

(2) Further inquire of each party whether mediation is appropriate and whether the

party who has been subject to the abuse understands the potential impact of

abuse on the party’s ability to participate in mediation or that the mediator is

observing apparent impact of a pattern of coercive control.

b. If the party subject to the abuse and the mediator agree that domestic violence is not

an inhibiting factor, the mediation may proceed. The mediator must discuss and plan

safety precautions with the abused party.

c. If either the abused party or the mediator determines that the mediation is not

suitable, mediation should be concluded. See Section H(1) (Safely Concluding

Mediation), on making a decision whether to mediate and Section F(4), Continuing

Mediation with Accommodations despite the presence of domestic violence or child

abuse.

d. If only one party has disclosed domestic violence, the disclosing party may be told

that domestic violence is the reason for concluding the mediation. To protect

confidentiality, the other party must be given a different reason.

e. If both parties have disclosed domestic violence, the mediator may explain to each

party that domestic violence is the reason for concluding mediation. To protect

confidentiality, the explanation provided must be based solely on the disclosure of

abuse made by that particular party. The parties may also be given another reason, at

the mediator’s discretion.

f. Suggested language for concluding after screening, directed to both the abused and

abusive parties:

“After considering the issues between both of you and observing your

interactions with each other, I know from your experience that it would be

very difficult for you to reach agreements. So rather than taking up your

time and resources, I am concluding this mediation [if necessary, insert

reasoning appropriate to each party, as described above].

It is not a “failure” to end mediation without an agreement, and there are

no legal repercussions for doing so. I will be reporting to the court only

that your case was concluded without an agreement, with no further

explanation. I would suggest that you review this case with your attorney

or seek legal advice. Your options may include negotiation between your

attorneys, referral to the Friend of the Court, or asking the court for a

decision.”

4. Possible ways to explain concluding mediation without mentioning domestic violence

The following reasons could be given for explaining a decision to conclude mediation

without referring to domestic violence:

a. Unwillingness or inability to follow mediation policies and procedures.

b. Parties are too far part in positions or interests.

c. Inability to negotiate.

d. Unwillingness to compromise.

e. Unwillingness to follow the mediator’s ground rules.

A-1

APPENDIX 1

DOMESTIC VIOLENCE SCREENING QUESTIONNAIRE

A blank form for printing/photocopying appears on the following page.

Michigan Supreme Court

State Court Administrative Office

Office of Dispute Resolution

Domestic Relations Mediation Screening Questionnaire

Note: this interview guide is intended to be used solely in separate interviews with each of

the parties before scheduling or holding the mediation to determine if mediation is

appropriate for the parties.

This guide should not be provided to the parties with a request to have them complete and

return it to the mediator.

Mediator’s Introduction:

Is this a good time to talk about the mediation process?

Do you feel comfortable talking with me right now, or would you prefer that I call

back/reschedule?

It might take 10 to 15 minutes, or it might take a longer, so we want to make sure you have

enough time to share with me what you would like me to know.

I am going to ask some questions to better understand the background of your matter, and we’ll

go through some private information. This is a great opportunity for you to say whatever you

would like to say and share your goals and concerns. It’s best that [insert name] not be present

or able to hear our conversation. Are you in a place where you can talk privately about this?

If something comes up, or you no longer have privacy at any time and you need to reschedule,

just let me know and we will find another time to continue.

Also, as we talk, I’d like you to keep in mind that there are different ways we can discuss your

issues in mediation without physically meeting. The options include using a computer or

smartphone on a platform like Zoom®, or by video conference, or by conference call.

[Open ended introductory question] Please tell me a little bit about the two of you; what

brings you to mediation?

2. Do you want to mediate? If so, why? If not, why not?

3. Could you tell me about how the decision to separate or divorce was reached?

4. When you look back over time, how were decisions made in your relationship/marriage?

Can you give some examples?

5. What happens when you speak your mind and express your point of view to [insert name]?

Can you give some examples?

6. Has [insert name] ever interfered with your relationships with family or friends, or with

your children? Can you give some examples?

7. Has [insert name] ever made it difficult for you to have money you need for things for

yourself or the family? Can you give some examples?

8. When you and [insert name] disagree, fight and/or are angry with each other, what

happens?

There are different ways we can discuss your issues in mediation. The options include

meeting in person, or meeting remotely using a computer or smartphone on a platform like

Zoom®, or by video conference, or by conference call.

Do you have any concerns about

being in the same space, virtually or physically, with [insert name] or mediating with [insert

name]? [If Yes] Is there anything that we can do to address those concerns?

10. If you have an attorney, would you prefer that your attorney be present with you or

participate online or by phone, during the mediation session?

Yes No ____

11. If video-conferencing is used for the mediation session, would you prefer if you and [insert

name] were in separate

breakout

rooms where you and [insert name] could not see or hear

each other?

Yes No ____

12.

If mediation were in person at a physical location, would

you prefer if you and [insert

name] arrived and departed at separate times or weren’t in the building at the same time?

Yes No ____

13. [If the case is managed through a CDRP center] Another possible option is to use an

entirely online service called MI-Resolve. MI-Resolve is a program sponsored by the

Michigan Supreme Court. It allows the parties and the mediators to exchange messages

online to discuss the issues. Do you feel that your e-mails and chat conversation would be

secure and could not be monitored by the other party or anyone else?

Yes No ____

14.

[If the mediator and parties are comfortable with available technology] Would you feel

more comfortable if the mediation took place over the telephone, internet, or by video

conference?

Yes No ____

NOTE TO SCREENER: If there is a “yes” answer to any of the following

questions 15-29, consider informing the party that mediation may NOT be a

good fit. If the abused party still wants to mediate, continue through the

screening process.

15. Have there ever been any physical confrontations between you and [insert name]? Can you

tell me what happened?

16. Do you ever feel afraid of [insert name]? What are you afraid of? Tell me about the time

you felt most afraid.

17. Do you think that [insert name] has ever felt afraid of you? What do you think they were

afraid of?

18. Has [insert name] ever caused you to feel threatened or harassed, for example by: following

you; interfering with your work or education; making repeated phone calls to you; using

social media; sending you unwanted letters, emails, text messages, faxes, gifts; or anything

else? Can you tell me more about it?

19. Is there currently or has there ever been an order limiting contact between th

two of

you, for example, a Personal Protection Order or a No Contact Order? Can you tell

me more about this?

20. [If there is or was an order] Has there ever been a violation of the order, whether or not

the violation was ever reported? Can you tell me about it?

21. Have you or [insert name] ever applied for an order to limit contact between the two of

you, for example, a Personal Protection Order, which never went into effect?

Yes No ____

Can you say more about that?

22. Are either of you currently prohibited from contacting any other person by a Personal

Protection Order or other court order?

23. Has [insert name] ever pushed, shoved, hit, kicked, spit on, choked, strangled, restrained, or

pulled your hair? If so, tell me more about that.

24. Has [insert name] ever damaged or destroyed your property, or harmed or threatened to

harm your pets? What about your children’s property or pets? If so, tell me more about that.

25. Are there any guns or other weapons in either of your homes? If so, do you have any

concerns about them?

26. Has [insert name] ever used a weapon or any other object in a way that felt threatening to you

or your children? Can you tell me more about it?

27. Has [insert name] ever threatened to hurt or kill themselves? Can you tell me more about it?

28. Have you ever been afraid that [insert name] would kill or injure you or anyone else close

to you? Can you tell me more about it?

29. Have either of you been arrested for, charged with, or convicted of a

crime?

30. Do you feel you are in danger right now?

Yes No ____

NOTE TO SCREENER: If there is a “YES” answer to question number 30,

discontinue the screening process, safely terminate the process, and explore

safety concerns. [See section H for assistance]

31. How are the children doing?

32. Do you have any concerns about the safety of the children? If so, tell me more about that.

33. Has [insert name] ever talked about taking the children away from you? Has [insert name]

ever interfered with or prevented you from seeing them? Please tell me more about that.

34. Has there ever been an investigation by Children’s Protective Services? Tell me more

about that.

35. Are either of you involved in a child abuse or neglect proceeding now? Tell me more

about that.

36. Is there anything I haven’t asked you about that you’d like to tell me?

37. [If appropriate and if attorney is not present] You have raised some important safety

concerns. Have you told your attorney what you’ve told me?

Yes No ____

[If No] It is generally important for your attorney to know about things we’ve talked about.

Is there a concern you have about telling your attorney?

38. Now that we have had a chance to discuss your situation and mediation, how do you feel

about going forward with mediation?

SCAO

October 2023

A-10

APPENDIX 2

Michigan Supreme Court

State Court Administrative Office

Mediator Standards of Conduct

Standard VI. Safety of Mediation

A. Consistent with applicable statutes, court rules, and protocols, reasonable efforts shall be

made throughout the mediation process to screen for the presence of an impediment that

would make mediation physically or emotionally unsafe for any participant, or that would

impede the achievement of a voluntary and safe resolution of issues. Examples of

impediments to the mediation process include: domestic abuse; neglect or abuse of a

child; status as a protected individual or vulnerable adult; and inability to understand or

communicate in the language in which mediation will be conducted.

1. In general, “reasonable efforts” may include meeting separately with the parties

prior to a joint session or administering screening tools.

2. In domestic relations cases, “reasonable efforts” should include meeting

separately with the parties prior to a joint session and administering the “Mediator

Screening Protocol” for domestic violence, published by the State Court

Administrative Office.

3. If an impediment to mediation exists and cannot be overcome by accommodations

that specifically mitigate it, the mediation process should not be continued unless:

a. After being provided with information about the mediation process, a

party at risk freely requests mediation or gives informed consent to it;

b. The mediator has training, knowledge, or experience to address the

impediment;

c. The mediator has discussed with the party at risk whether an attorney,

advocate, or other support person should attend the mediation; and

d. The mediator has assessed that a party can determine and safely convey

and advocate for his or her needs and interests without coercion, fear of

violence, or other repercussions or consequences that would put the party

at risk.

B. Where it appears that minor children or vulnerable adults may be affected by an

agreement, a mediator should encourage participants to consider their safety. The

complete set of standards appears at:

http://courts.mi.gov/Administration/SCAO/Resources/Documents/standards/odr/Mediator%20Standards%2

0of%20Conduct%202.1.13.pdf

A-11

APPENDIX 3

Examples of Protective Provisions In

Custody and Parenting Time Agreements

A. Mediators should facilitate the crafting of specific and detailed agreements

governing parenting time to reduce the opportunity for manipulating ambiguities

or to minimize contacts between the parties.

B. Mediated agreements should avoid non-specific provisions such as “reasonable

parenting time,” “parenting time as agreed by the parties,” or “parenting time to

be arranged later.” The terms of a parenting time agreement should be stated

unambiguously, with pick-up and drop-off locations, times, and days of the week

clearly specified.

C. Arrangements for joint physical and legal custody are also problematic in cases

involving domestic violence. Upon separation, many abusers continue their tactics

of coercive control, focusing on custody and parenting time arrangements as a

means of access to their former partners. Thus, the children of a domestic

violence perpetrator face these continuing risks:

1) They may be exposed to further violence against the abused parent committed

at times when both parents meet to drop them off or pick them up.

2) Because many abusers are serial perpetrators, they may be exposed to

violence against the abusive parent’s new partner.

3) They may become “tools” of abuse. Many perpetrators threaten children, use

them to convey threatening messages to the abused parent, or use them to do

surveillance of the abused parent.

4) Their relationships with the abused parent may be undermined by the abusive

parent.

5) Abusers with joint legal may undermine their former partner’s decisions about

medical care, education, sports activities, and other aspects of life, to the

detriment of the children’s best interests.

D. Mediated agreements can provide for protective conditions of custody and

parenting time, for example:

1) Provide for supervised parenting time, with supervising third parties clearly

identified.

2) Identify individuals who may not be present during parenting time.

A-12

3) Provide safe, neutral locations for parenting time, whether supervised or

unsupervised.

4) Specify how the parties may communicate with each other to make

arrangements for parenting time.

5) Arrange parenting time so that the parties will not meet.

6) If the parties must meet to transfer children, require that the transfer take place

in the presence of a third party and in a protected setting. Use available

resources for supervised visitation and exchange of children such as programs

provided by local domestic violence service providers or other local agencies.

7) Provide for short, daytime visits in a public place.

8) Place limits on overnight visits.

9) Allow parenting time to be cancelled if the noncustodial party is under the

influence of drugs or alcohol during parenting time.

10) Limit a party’s access to firearms.

11) Permit cancellation of parenting time if a party is more than a specified

number of minutes late to begin parenting time.

12) Specify how disputes between the parties will be resolved.

13) Require surrender of a passport prior to exercising parenting time, or take

other steps to deter abduction, if there is a risk of a party abducting or fleeing

with the children.

A-13

APPENDIX 4

Scripts

Script for remote screening (page 19):

“I realize that it is not always safe for folks to share their concerns about mediation (on the

phone, via Skype®, through the web, etc.) so before we get started, I’d like to be sure that it’s

OK for me to talk to you about mediation in your divorce case.”

“Are you free and safe for the next ____ minutes to honestly talk with me about whether or not

mediation is appropriate in your divorce proceedings?”

“If it is unsafe for you to talk right now, is there another time I can call when it will be safe for

you to talk freely?”

If talking on the phone is not a good option: “If talking on the phone is a problem for you, what

would be another way for us to discuss mediation?”

If the individual is presently safe, but expresses concerns about danger arising during the call:

“Is there a word or phrase you can say to me during our conversation that will let me know you

are unsafe? If that happens, is there another time I can call you later? Is there another way for us

to discuss mediation in your case?”

Script for introduction to the questionnaire (page 20):

“The reason I meet with the parties individually is to give each of you the opportunity to tell me

about concerns you might have about mediation and your situation. I will be asking you specific

questions about how you and [insert name] get along, so that we can assess whether mediation is

appropriate in your situation.

In general, I will treat all information provided during mediation sessions as confidential. I will

not give information obtained during this interview or during mediation to any outside person or

organization unless both of you agree in writing, with exceptions that are covered in the court

rules. Some of the exceptions are:

a. allegations of child abuse or neglect;

b. threat of bodily harm to another person; and,

c. future criminal activity.

If you want to read the court rule that also lists other exceptions, I can provide it to you.

The goal of mediation is for the two of you to reach an agreement on some or all of the issues in

your case. All agreements must be voluntary. My role during mediation would be to help you

reach an agreement, not to make a decision or a recommendation to the court on the issues.

A-14

I am neutral in the sense that I am not advocating for either one of you, or for a particular

outcome. I would not give an opinion as to who is right or wrong, or as to what the agreements

ought to look like.

If we decide to continue mediation and use the usual process, I will meet with you and the other

party together. Another option would be to meet separately.

I don’t give legal advice. If you have counsel, I recommend that you keep your attorney

informed about the mediation process, seek legal advice from your attorney and have any of our

material reviewed by your attorney.”

Script for encouraging party to call for help (page 25):

“I am concerned for your safety. None of this is your fault. I would like you to consider talking

with a professional with experience in helping people explore their safety options. In our

community [NAME LOCAL ADVOCACY AGENCY] can help people in your situation with

counseling, advocacy, support groups and counseling for your children. They also can provide

emergency shelter if you need it. The phone number is _____________. You can also call the

National Domestic Violence Hotline at 1-800-799-SAFE (7233); TTY 1-800-787-3224. The

National Hotline can provide you with confidential advocacy and support and also refer you to

the nearest domestic violence program. You can use my phone if you’d like.”

Script for mediator to contact advocacy agency (page 25):

“I am concerned for your safety and want to make sure that I am giving you correct information.

Would it be ok with you if I called a local program or the National Domestic Violence Hotline to

help me give you referrals and assistance in coming up with safety options? I will not give them

any identifying information about you.”

Script for referring a party to an advocacy agency (page 26):

“Most communities have organizations that provide services to survivors of domestic violence.

These services often include counseling, advocacy, support groups and [counseling for your

children]. They also include emergency shelter, if you need it. The phone number for our local

domestic violence advocacy agency is ___________. You can also call the National Domestic

Violence Hotline at 1-800-799-SAFE (7233); TTY 1-800-787-3224. The National Hotline can

provide you with confidential advocacy and support and also refer you to the nearest domestic

violence program. Here are brochures and information for you to read over. Will taking this

information home with you be dangerous?”

Script for concluding mediation during screening, directed to both the abused and abusive

parties (page 27):

“I have decided to conclude mediation in this case. Many cases are not suitable for mediation. It

is my experience that with situations like yours, mediation does not work. [If necessary, insert

A-15

reasoning appropriate to each party, as described above.] This screening process fulfills the

requirement for court ordered mediation. I will be reporting to the court only that this case is not

suitable for mediation. I will not be giving the court any further explanation. It is not a “failure”

if you don’t continue mediation and there are no legal repercussions for doing so. I would

suggest that you review this case with your attorney or seek legal advice as to your next steps.

Your options may include negotiation between your attorneys, referral to Friend of the Court, or

asking the court for a decision.”

Script for concluding mediation after screening, directed to both the abused and abusive

parties (page 28):

“After considering the issues between both of you and observing your interactions with each

other, I know from your experience that it would be very difficult for you to reach agreements.

So rather than taking up your time and resources, I am concluding this mediation [if necessary,

insert reasoning appropriate to each party, as described above].

It is not a “failure” to end mediation without an agreement, and there are no legal repercussions

for doing so. I will be reporting to the court only that your case was terminated without an

agreement, with no further explanation. I would suggest that you review this case with your

attorney or seek legal advice. Your options may include negotiation between your attorneys,

referral to Friend of the Court, or asking the court for a decision.”

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APPENDIX 5

Flyer: Is Mediation Right for You?

A flyer that can be printed/photocopied appears on the following pages.

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APPENDIX 6

Court Responsibilities

A. Court Referral of Cases to Mediation; Exceptions

Under Michigan Court Rule 3.216 and MCL 600.1035, cases may be referred to mediation

on written agreement of the parties, on written motion of a party, or on the court’s own initiative.

The court may not submit contested cases to evaluative mediation unless all parties request it.

Parties who are subject to a personal protection order or who are involved in a child neglect

or abuse proceeding should not be referred to mediation without a hearing to determine whether

mediation is appropriate.

A party can object to mediation by filing a written motion to remove the case from

mediation. A timely motion must be heard before the case is mediated. Cases may be exempt from

mediation on the basis of the following:

1. Child abuse or neglect.

2. Domestic abuse, unless attorneys for both parties will be present at the mediation

session.

3. Inability of one or both parties to negotiate for themselves at the mediation, unless

attorneys for both parties will be present at the mediation session.

4. Reason to believe that one or both parties’ health or safety would be endangered by

mediation.

5. For other good cause shown.

B. Court Obligations to Screen; Parties’ Self-Reporting

Although the primary focus of this protocol is on mediator screening, by court rule, courts

must conduct their own screening for domestic violence and child abuse or neglect. Additionally,

parties should be encouraged to self-report the presence of domestic violence, if not on a form

provided by the court, then in any way a party feels comfortable.

Court screening and opportunities for self-reporting should take place before a case is

referred to mediation. Because the level of risk from domestic violence may fluctuate over time in

response to changes in the parties’ situation or case developments, court screening and

opportunities for self-reporting should also be in place throughout the life of a case.

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1. Court screening

Courts screening for domestic violence and child abuse/neglect will help identify cases that

are not suitable for mediation. Screening will also help the court identify cases that, under MCR

3.216, require a hearing before they may be referred to mediation (i.e. current personal protection

order or pending child abuse/neglect cases).

Courts must examine their own records in screening for domestic violence and child

abuse.0F

If domestic violence is identified, the court must not order parties to mediation without

holding a hearing. The court should also provide the abused party with information about a local

domestic violence service provider organization to discuss options, conduct safety planning,

consider services, and consider whether mediation is a safe option.

The model public education notice “Is Mediation Right For You?” appearing in

Appendix 5, can be used to provide referral information if local domestic violence service

provider information is included in the notice. For a list of domestic violence service agencies by

county, see www.michigan.gov/domesticviolence.

If the court determines that the case is not appropriate for mediation, the court should not

order the parties to mediation.

2. Party education and self-reporting

Because evidence of domestic abuse may not appear in public records, parties need

opportunities to self-report it prior to mediation and throughout the life of a case.

To help parties decide whether they can safely and meaningfully participate in mediation,

a court should provide them with clear, understandable educational materials prior to mediation,

including information about:

a. The advantages and disadvantages of mediation.

b. The circumstances under which mediation may be ordered with or without a hearing.

c. Considerations for determining whether mediation is appropriate for their case.

d. Domestic violence.

Ideally, specially trained court personnel would conduct separate and private individual conferences with each

party to explore concerns about domestic violence, safety of parties and children, and issues concerning the parties’

ability to negotiate. Court personnel would also provide information about appropriate services, including local

domestic violence service providers. Due to safety concerns, information revealed by the parties during these

conferences should be confidential and should not be disclosed, except where there is a duty to warn, allegations of

child abuse or neglect, or if other statutes or court rules require disclosure. Ensuring confidentiality of information

revealed during the conferences, and establishing protocols regarding location or storage of this information is a

prerequisite to instituting extensive screening by the court.

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e. Self-screening for domestic violence and child abuse/neglect.

f. Procedures for objecting to mediation.

g. Rights regarding confidentiality and termination of mediation.

h. Local domestic violence service providers.

As mentioned above, the model public education notice “Is Mediation Right For You?”

can be helpful in providing some basic information.

Parties who decide that mediation is not appropriate for their case should file a motion to

object to mediation.

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APPENDIX 7

Michigan Statutory Domestic Violence Screening Requirements

MCL 600.1035 Submission of contested issue in domestic relations action; history of

coercive or violent relationship or presence of coercion or violence; inquiry and screening

by mediator; "domestic relations action" defined.

Sec. 1035.

(1) Except as provided in this subsection, unless a court first conducts a hearing under the court

rules to determine whether mediation is appropriate, the court shall not submit a contested issue

in a domestic relations action, including postjudgment proceedings, if either of the following

applies:

(a) A personal protection order has been issued under section 2950 or 2950a or another order

has been entered protecting 1 party and restraining the other party. However, the court may order

mediation if the protected party requests mediation.

(b) One or both of the parties are involved in a child abuse or neglect proceeding. However, the

court may order mediation if a parent protected by an order in the proceeding requests mediation.

(2) In a domestic relations mediation, the mediator shall make reasonable inquiry as to whether

either party has a history of a coercive or violent relationship with the other party. A reasonable

inquiry includes the use of the domestic violence screening protocol for mediation provided by

the state court administrative office as directed by the supreme court.

(3) A mediator shall make reasonable efforts throughout the domestic relations mediation

process to screen for the presence of coercion or violence that would make mediation physically

or emotionally unsafe for any participant, or that would impede the achievement of a voluntary

and safe resolution of issues.

(4) As used in this section, "domestic relations action" means any of the following:

(a) An action for divorce, separate maintenance, annulment of marriage, affirmation of

marriage, paternity, family support under the family support act, 1966 PA 138, MCL 552.451 to

552.459, the custody of minors under the child custody act of 1970, 1970 PA 91, MCL 722.21 to

722.31, or grandparenting time under section 7b of the child custody act of 1970, 1970 PA 91,

MCL 722.27b.

(b) A proceeding that is ancillary or subsequent to an action listed in subdivision (a) and that

relates to any of the following:

(i) The custody of a minor.

(ii) Parenting time with a minor.

(iii) The support of a minor, spouse, or former spouse.

History: Add. 2016, Act 93, Eff. Aug. 1, 2016

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APPENDIX 8

Abbreviated Screening Questionnaires

For use ONLY by

Community Dispute Resolution Program Centers

A blank form for printing/photocopying appears on the following pages.

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State Court Administrative Office

Office of Dispute Resolution

DOMESTIC VIOLENCE SCREENING

PROTOCOL FOR MEDIATORS OF

DOMESTIC RELATIONS CONFLICTS

ABBREVIATED DOMESTIC VIOLENCE SCREENING

QUESTIONNAIRES FOR USE IN LIMITED CIRCUMSTANCES BY

COMMUNITY DISPUTE RESOLUTION PROGRAM CENTERS

ONLY.

October 2023

MICHIGAN SUPREME COURT



OFFICE OF DISPUTE RESOLUTION

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Purpose and Use of Abbreviated Domestic Violence Screening

Questionnaires

To promote safety for litigants, their children, and mediators, the complete unabbreviated

Domestic Violence Screening Questionnaire should be used in every possible instance of

screening for domestic violence.1F

∗

All mediators and Community Dispute Resolution Program

center staff conducting case intake should be trained on and be familiar with the complete

Domestic Violence Screening Protocol document, including the complete screening

questionnaire.

Recognizing that special circumstances may exist at Community Dispute Resolution

Program (CDRP) offices in which time constraints make the use of the complete screening

questionnaire difficult, two abbreviated versions are provided for use only in the following

limited situations. Under no circumstance should the abbreviated version be used by other than

CDRP center staff and volunteers.

Abbreviated Questionnaire 1: Parties are not yet together at the mediation. This

version should be used only when limited time is available in advance of an in person meeting

with the parties, but parties are not yet together at the mediation site. This Questionnaire

contemplates the circumstance of CDRP centers having insufficient time to use the complete

protocol in advance of parties appearing at the center or court, and where only limited time is

available for screening.

Abbreviated Questionnaire 2: Parties are already together at the mediation site. This

version is for use only when parties are present at court in person and have proceeded through a

security check, prior intake was not conducted, and mediation is to take place immediately. This

Questionnaire contemplates the circumstance where parties have been ordered by the judge to

attempt mediation at a location within the court, and the only opportunity for screening is

literally “in the hall.”

∗

Domestic violence is a pattern of coercive controlling behaviors, both criminal and non-criminal, that includes but

is not limited to physical assaults, sexual assaults, emotional abuse, isolation, economic coercion, threats, stalking,

and intimidation. These behaviors are used by the abuser in an effort to control the intimate partner. The behavior

may be directed at others with the effect of controlling the intimate partner.

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In the event that a party’s response to a question does elicit concern over the presence of

domestic violence, court and CDRP center staff and mediators must be ready to expand upon the

party’s response by referencing back to the complete screening questionnaire document.

Mediators using an abbreviated screening questionnaire should also be alert during the

mediation process for signs of anger or that a party otherwise has a compromised ability to

negotiate.

Be prepared to safely conclude the mediation if domestic violence concerns arise during

the mediation session.

SAFETY NOTE: Prior to bringing the parties together, it is absolutely essential that court records have

been checked for:

1. Personal Protection Orders or similar civil protection orders issued in other states;

2. “No-contact” orders issued in criminal cases (e.g., pretrial release orders, probation or parole

orders); and

3. Pending child abuse and neglect cases.

Neither abbreviated questionnaire is intended to replace the use of the complete Questionnaire when

time and circumstances permit its use.

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Abbreviated Domestic Violence Screening Questionnaire 1:

Parties are Not Yet Together

This screening questionnaire is for use only by Community Dispute Resolution Program

center staff and mediators when time and circumstances do not permit using the complete

questionnaire before meeting with the parties, and where parties are not yet together at the

mediation site or are mediating remotely and time does not permit use of the full Questionnaire.

1. Is there anyone else in the room with you? (Assumes a remote contact.) Can you speak

freely?

2. Is there currently or has there ever been an order limiting contact between the two of you,

for example, a Personal Protection Order, or a No-Contact Order? If so, can you tell me

about it?

3. If there is or was an order, has there ever been a violation of the order, whether or not the

violation was ever reported?

4. [If the parties have children] Has there ever been an investigation by Children’s

Protectives Services? Is there an open abuse or neglect case involving your children? If

so, please tell me about it.

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5. Do you have any concerns about the safety of the children? If so, please tell me more

about that.

6. When you and [insert name] disagree, fight, and/or are angry with each other, what

happens?

7. Do you ever feel afraid of [insert name]? What are you afraid of? Tell me more about the

time you felt most afraid.

8. Do you think [insert name] has ever felt afraid of you? What do you think he/she may be

afraid of?

9. Has [insert name] ever caused you to feel threatened or harassed by following you,

interfering with your work or education, making repeated phone calls to you, using social

media or sending unwanted letters, emails, text messages, faxes, gifts, or anything else?

Can you tell me more about it?

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10. Have there ever been any physical confrontations between you and [insert name]? Can you

tell me what happened? Have there been any other physical confrontations? Can you tell

me what happened?)

11. There are different ways we can discuss your issues in mediation. The options include

meeting in person, or meeting remotely using a computer or smartphone on a platform like

Zoom®, or by video conference, or by conference call. Do you have any concerns about

being in the same space, virtually or physically, with [insert name] or mediating with

[insert name]?

Yes ____ No ____

If yes, ask the following questions:

A. Is there anything we can do to address those concerns?

B. If you have an attorney, would you prefer that your attorney be present with you or participate

online or by phone, during the mediation session?

Yes ____ No ____

C. If video-conferencing is used for the mediation session, would you prefer if you and [insert

name] were in separate breakout rooms where you and [insert name] could not see or hear each

other?

Yes ____ No ____

D. If mediation were in person at a physical location, would you prefer if you and [insert name]

arrived and departed at times or weren’t in the building at the same time?

Yes ____ No ____

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E. Another possible option is to use an entirely online service called MI-Resolve. MI-Resolve is a

program sponsored by the Michigan Supreme Court. It allows the parties and the mediators to

exchange messages online to discuss the issues. Do you feel that your e-mails and chat

conversation would be secure and could not be monitored by the other party or anyone else?

Yes ____ No ____

F. (If the mediator and parties are comfortable with available technology) Would you feel more

comfortable if the mediation took place over the telephone, internet or by videoconference?

12. Do you think you will be able to speak up for yourself in mediation?

13. Is there anything I haven’t asked you about that you’d like to tell me?

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Abbreviated Domestic Violence Screening Questionnaire 2:

Parties Are Already Together at Court

This screening questionnaire is for use only by Community Dispute Resolution Program

center staff and mediators when mediation is conducted at the court, parties have proceeded

through security, and a check for Personal Protection Orders and child abuse and neglect cases

has been completed, but time and circumstances do not permit using the complete questionnaire.

1. Is there currently or has there ever been an order limiting contact between the two of you,

for example, a Personal Protection Order or a No-Contact Order? If so, can you tell me

about it?

2. Do you ever feel afraid of [insert name]? What are you afraid of? Tell me more about the

time you felt most afraid. Do you think that [insert name] has ever felt afraid of you? What

do you think they may be afraid of?

3. Have there ever been any physical confrontations between you and [insert name]? (Can

you tell me what happened? Have there been any other physical confrontations? Can you

tell me what happened?)

4. Are you afraid that [insert name] will harm you during the mediation or after you leave

because of what you said in mediation? If so, please describe.

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5. There are different ways we can discuss your issues in mediation without physically

meeting. The options include using a computer or smartphone on a platform like Zoom®,

or by video-conference, or by conference call. During mediation, you and [insert name]

may meet in the same room to talk about all the issues and problems that need to be

resolved. Do you have any concerns about being in the same space, virtually or physically,

with [insert name] or mediating with [insert name]?

Yes ____ No ____

If yes, ask the following questions:

A. Is there anything we can do to address those concerns?

B. If you have an attorney, would you prefer that your attorney be present with you or participate

online or by phone, during the mediation session?

Yes ____ No ____

C. If video-conferencing is used for the mediation session, would you prefer if you and [insert

name] were in separate breakout rooms where you and [insert name] could not see or hear each

other?

Yes ____ No ____

D. If mediation were in person at a physical location, would you prefer if you and [insert name]

arrived and departed at times or weren’t in the building at the same time?

Yes ____ No ____

E. Another possible option is to use an entirely online service called MI-Resolve. MI-Resolve is a

program sponsored by the Michigan Supreme Court. It allows the parties and the mediators to

exchange messages online to discuss the issues. Do you feel that your e-mails and chat

conversation would be secure and could not be monitored by the other party or anyone else?

Yes ____ No ____

F. (If the mediator and parties are comfortable with available technology) Would you feel more

comfortable if the mediation took place over the telephone, internet or by videoconference?

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6. Do you think you will be able to speak up for yourself in mediation?

7. Is there anything I haven’t asked you about that you’d like to tell me?

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Acknowledgments

Development of the original Domestic Violence Screening Protocol was a project of the

Michigan Domestic Violence Prevention and Treatment Board in collaboration with the

following organizations:

Michigan Coalition Against Domestic and Sexual Violence

University of Michigan Law School Family Law Project

Mediation Training and Consultation Institute

Michigan Poverty Law Program

Legal Services of Southern Michigan

Legal Aid of Western Michigan

State Court Administrative Office, Office of Dispute Resolution

Michigan Judicial Institute

This 2021 revision is the product of the Domestic Violence Screening Protocol Review

Committee, convened by the State Court Administrative Office, Office of Dispute Resolution.

Committee members included:

Annette Wells - Community Mediation Services

Charity Burke - Oakland Mediation Center

Denise Couling - Banfield Couling PLLC

Earlene Bagget-Hayes - The Law and Mediation Center, PLLC

Elizabeth Bransdorfer - Mika Meyers, PLC

Kathy Hagenian - Michigan Coalition to End Domestic and Sexual Violence

Lore Rogers - Michigan Domestic and Sexual Violence Prevention and Treatment

Mary Kaye Neumann - Oakland County Friend of the Court

Michelle Letourneau-McAvoy - Wayne Circuit Court

Peg MacDougall - Resolution Services Center of Central Michigan

Rebecca Rogan - Conflict Resolution Services, Inc.

Rebecca Shiemke - Michigan Poverty Law Program

Stephanie Beyersdorf - State Court Administrative Office

Tiffany Martinez - Michigan Domestic and Sexual Violence Prevention and Treatment

Toni Raheem - Law & Mediation Offices of Antoinette R. Raheem, P.C

Veronica Thronson - Michigan State University College of Law

Zena Zumeta - Mediation Training & Consultation Institute

Since 2021, minor updates to the protocol have been made by staff at the State Court

Administrative Office.

The Office of Dispute Resolution gratefully acknowledges the time, helpful advice, and

expertise contributed by the foregoing individuals.

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Contact Information

For additional information about these materials, please contact:

Office of Dispute Resolution

Michigan Supreme Court

Box 30048

Lansing, MI 48909

Telephone: 517/373-4839

E-mail: [email protected]

Website: courts.mi.gov/ODR