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 always right.

“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.

Why Mandatory?

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:

  • Parents who participated in mandatory mediation of custody disputes are twice as likely to be satisfied with both the process and the results as parents who go to court without mediation.

  • Mediated agreements are more likely to be complied with than are court orders.

  • A vast majority of parents who participate in mandatory mediation of custody disputes believe that mediation also helps them focus attention on the needs of their children and helps the parents feel better about themselves.

  • Mediation is twice as likely as court intervention to improve relationships between the parties.

  • Mandatory mediation saves money for both the parties and the state when compared with extended court action, while allowing the parties significantly more time to address their problems.

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.

Sources

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. p 1-2

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

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