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Cardozo Journal of Conflict Resolution

Abstract

Chinese immigrants, particularly those that lack legal status, have historically mistrusted the U.S. legal system. Not only are they wary of the adversarial nature of court proceedings, but also language and cultural barriers frequently prevent them from gaining meaningful access to relief. As a result, issues that arise from within the Chinese immigrant community are generally addressed privately or with the assistance of community leaders. In the case of domestic violence, cultural norms and values about gender roles typically deter battered immigrant women from seeking help in the first place. Undocumented immigrant women are more susceptible to deportation and are thus generally reluctant to seek help outside the family because, in many cases, their status is dependent on the sponsorship of their battering spouse, and in some instances, it could jeopardize the legal status of their battering spouse. While federal laws, namely the Violence Against Women Act of 1994 and its subsequent 2000, 2005, and 2013 reauthorizations, were enacted to protect battered immigrant women and have helped to weaken the ability of batterers to use immigration laws as a means of coercion, immigrant women who are victims of domestic violence and lack legal status still encounter significant obstacles to relief. In this context, court-appointed mediation can be more effective than private or community-based mediation in both providing the legal assistance that these battered women need and ensuring that their rights and safety are protected.

Section II provides the historical basis from which to examine domestic violence in immigrant communities in the United States and then situates domestic violence in the Chinese immigrant experience. Section III explores the role of mediation in family court cases involving domestic violence and considers arguments for and against court-appointed mediation programs. Section IV argues that court-appointed mediation can be effective in domestic violence contexts involving battered immigrant women if a screening procedure is instituted to determine whether mediation is appropriate in each circumstance. Rather than adopt a per se rule against mediation in cases involving domestic violence, those cases would first be screened to determine if there has been a consistent pattern of abuse or if the acts of abuse are isolated and therefore can be more effectively mediated. Furthermore, mediators working in a cross-cultural context must not only demonstrate cultural sensitivity and linguistic ability to communicate effectively with a particular segment of the immigrant population, but they must also be mindful of their own implicit biases that give rise to attitudes and stereotypes about gender, race, and class. Finally, Section V concludes that court-appointed mediation may be a viable alternative to private or community-based mediation strategies in protecting the rights of battered Chinese immigrant women, including undocumented immigrants, particularly when their legal status is at stake.

Disciplines

Dispute Resolution and Arbitration | Law | Law and Gender

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