What Is Mediation?
Divorce mediation is a process whereby a couple facing divorce meets with one or more impartial, neutral third
parties who are skilled in problem solving and knowledgeable about divorce law. Through a series of meetings, the couple attempts to resolve their differences in a positive way with the help of the
mediator or mediators. The mediator can be a lawyer, a therapist, or a lawyer-therapist team. In addition, third party experts are used when necessary to establish the accurate value of community
assets, although these appraisers do not usually participate in mediation (Folberg & Taylor (1984).
Non-adversary help from professionals whose interest is in the family (not a client) is essential for many who, at the most conflicted
and confused time of their lives, are obliged to make some of the most critical life decisions, the care of children the foremost among them. A wide
variety of professionals who work in the family relations disciplines advance severe criticisms of the adversarial process. Among these are the perspectives of the prominent American divorce lawyer
Fiedler (1971) that are transferable to the Australian situation:
I am in the business of winning... Once I have been hired my sole aim is
to gain victory; and in doing so, I will do
anything and everything I think is necessary to serve the interests of my client... That is what I have been hired to do, and if in doing so I appear cold and calculating that’s the way it has to
be. I am tough because I assume the lawyer who opposes me will also be tough (and) when I take a case I am not concerned with whether any client is always
right. As far as I am concerned, a client is
“Thus the adversarial system trains some parents through
modelling to fight more effectively, using slander, accusation and any other
weapon available, yet such contests are seen as proper means of achieving the best interests of the child. By any standard of civilised behavior, as well as the accumulated research data recording
that children need joint physical custody and a low level of inter-parental conflict, the adversarial system must rank very low as a method of making satisfactory and lasting post-divorce parenting
arrangements” (Saposneck 1983).
Research indicates that it is important to provide parents with the forum and the tools they need to separate their unsatisfactory
marital relationship from their continuing role as parents after divorce Many parents intuitively understand that high levels of conflict can adversely affect on their children’s emotional health.
Others need the assistance of appropriate laws and trained professionals in order that sensible decisions are made in their children’s best interests.
If mediation is good goes the argument it should not be mandatory. All we need is to tell people about it, or show them
a videotape and
those for whom it is helpful will choose it. To suggest that viewing a videotape on mediation might be sufficient to counter a lifetime exposure to the idea that controversies should be resolved by
litigation ignores the realities of human nature. The unfortunate truth about human behaviour however, is that when left to our own devices, we often choose to act in ways that are not very prudent.
Some people would ride in cars, alone or with their children, without seatbelts. Others ride motorbikes without helmets, or otherwise expose themselves and the children who rely on them to danger
There are countless things that we do which are not the results of profound knowledge. We often act because we are used to acting in
certain ways, or because we have fear or uncertainty about the unknown. To the extent that people’s views about mediation are subject to influences
outside of the judicial system, it is not the educational media, but the opinions of their lawyers that seems to impact most noticeably. Whether those represented by lawyers are likely to accept or
reject mediation seems to depend on the attitudes of the local bar than on any insight of the parties in dispute.
Where mediation is not mandatory, it is likely to be chosen by those whose lawyers recommend it and likely to be rejected by those
advised by their legal practitioners to do so. In addition, if mediation is not mandatory, it is not then voluntary, in any real sense of the word.
Instead, a system of non-mandatory mediation either parent could force the case to trial by refusing mediation, regardless of the other party’s preference.
Most people learn about mediation most
effectively by participating, and that the vast majority are pleased with what they learn.
Further, evidence indicates that women would not be more likely to opt out of mediation than men. Rather, those most
likely to reject mediation are those who are unfamiliar with the process and generally reluctant to try something new.
While a small number of people might experience discomfort in the mediation session, the undeniable truth is that every law ever
enacted changes some pre-existing relationship and makes some people unhappy. The evidence shows that mandatory mediation is a beneficial enactment and helps a far greater number of people of both
genders than it hurts.
In any deliberation on mandatory mediation it is important to consider the concern of critics that abused spouses may be unable to
hold their own during the process of mandatory mediation, and requiring victims of abuse to negotiate head-to-head may be inappropriate. A brief examination of California mandatory mediation law sheds
light on this issue. In mandated mediation parties are only required to attend mediation. They need not reach agreement or actively take part, so even the
process may be required it is only marginally compelling.
The statute requires that the parties participate in mediation. California law imposes no penalties for participating badly, or for
participating only briefly. The party who is determined to use the court for their own personal vindication may simply refuse to reach agreement and the court-room door will swing wide open.
Nonetheless, the net result in this jurisdiction’s use of mandatory mediation in child custody/contact disputes has been that parties who would not have attended the mediation absent the court order
almost invariably do participate in a meaningful way and are satisfied with the outcome.
The Australian Family Court’s 1994 evaluation of a voluntary mediation program conducted in the Melbourne registry found it to be
very beneficial for participants. However, the introduction of mandatory mediation was not recommended. This
was done without any detailed analysis of the experience of jurisdictions that had enacted mandatory mediation laws.
The report examined 149 cases mediated between April 1992 and March 1993. It found that there was overall agreement in 82% of cases,
with all matters in dispute settling in 71% of cases and at least one substantial matter settling in 11% of cases. 79% of participants were assessed as experiencing moderate to high relationship
conflict, with 92% showing moderate to low levels of communication with their former partner. Having co-mediation by a man and women was seen as highly desirable. Some 88% of clients reported that
having male and female mediators with both legal and social science training made a great deal of difference to the way things were handled.
Multiple issue disputes resulted in a higher rate of agreement than single-issue cases (88% and 73% respectively). In particular,
combined property and child matters demonstrated a higher resolution rate than cases dealing with either of these matters alone. The report recommended further evaluation of the mediation service to examine whether there were any systemic problems. It suggested that an evaluation should include an attempt to
understand why combined property and child matters tended to have a higher rate of resolution than matters raising only one of these matters.
Curiously, a study of mandatory mediation commissioned by the Californian Judicial Council was cited in the report’s bibliography.
However, there was no discussion of the research results. The study by Dr. Mary Duryee (1991), Director Alameda Family Court Services, like most other studies of mandatory mediation, found:
The finding that ‘mandatory mediation saves money for both the parties and the state’ confirms earlier research
data. McIsaac (1981) found that mediation administered through a conciliation court as part of California’s mandatory process cost only one fourth as
much as a trial. The author points out that this significant saving of public funds was the most persuasive argument presented in getting California's mandatory mediation law passed.
Folberg J, & Taylor A (1984). Mediation; A Comprehensive Guide To Resolving Conflicts Without Litigation. pp 7-9
Fiedler R. L (1971). They Way Things Are; Not The Way Things Should Be. World: New York.
Saposnek D (1983). Mediating In Child Custody Disputes. Jossey-Bass: New York. p 9
Family Court of
Australia (March 1994). Evaluation of The Family Court Mediation Service, Office of The Chief Executive, Research Report
Number 12 . See key findings and conclusions. pp 4-11
Duryee M. A (1991). Consumer Evaluation of A Court Mediation Service. Report To The Judicial Council of The State of California.
Cited as Duryee M. A (1991). Mandatory Court Mediation: Demographic Survey and Consumer Evaluation of One Court Service. Executive Summary. Conciliation Courts Review 30(2): 261-267
McIsaac H (1981). Mandatory Conciliation: Custody Visitation Matters, California’s
Bold Stroke. Conciliation Courts Review. 19(2): 78-81