Divorce Mediation

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Divorce Mediation

Society, and the cultures that comprise it, change through time. The increasing prevalence of divorce is one example of change that societies and cultures experience. Data gathered on divorce in the United States indicate that approximately 50 percent of couples marrying can expect to divorce sometime in their lifetime (Coulson 1996). The divorce experience affects the parties divorcing, friends, extended family, and children. At the beginning of the twenty-first century numerous authors emphasized the effects of divorce and parental conflict on children (e.g., Coulson 1996; Twaite and Luchow 1996). Effects can vary from a decrease in self-esteem and increase in behavioral problems as older siblings are asked to be responsible for younger siblings or children being used as messengers or spies (e.g., report on parent's dating behavior). These are only a few examples of how divorce and continuing conflict may affect children. Efforts to mitigate the effects of divorce may include informal support systems such as friends, family, religion, or more formal support systems such as mental health professionals, the legal system and, in the last twenty-six years, divorce mediation. Divorce mediation, as a helping process, was formally created in 1975 (Emery 1995; Helm, Boyd, and Longwill 1992). Only after no-fault divorces emerged in the 1970s was the no-fault dispute resolution process of mediation possible. Divorce mediation (hereafter referred to as mediation) was originally conceptualized as an alternative conflict resolution strategy to litigation.

Many questions have arisen in mediation's short history, such as what mediation is, should be, its effectiveness, who should perform it and the training requirements of mediators. This entry will discuss mediation processes, common themes, and variations and trends, as well as the perceived advantages and disadvantages of mediation, including when necessary, commonly used, and contraindicated. Research conducted on mediation, including the assessment of these advantages and disadvantages, will follow with an examination of international perspectives on mediation as well as cross-cultural issues.

Divorce Mediation Process

Though mediation has only formally existed for approximately twenty-five years (Helm, Boyd, Longwill 1992) the process of mediation has been around for centuries. Ancient Chinese used mediation as the primary means for conflict resolution. This ancient process involved a neutral third person helping parties to resolve disputes. This, in its simplest form, is the essence of mediation today; a settlement process emphasizing informed decision making and mutually acceptable agreements between disputants. Mediation can provide an alternative to the adversarial approach of the legal system. It is goal-focused and time-limited; targeting the issues to be resolved (Beck and Sales 2001; Gentry 1997). Common issues addressed are division of property, spousal support, child support, custody, and visitation (Emery 1995; Schwebel et al. 1994). Mediators assist parties to communicate clearly, clarify their disagreements, determine intentions, interests, and consider settlement options; all for the sake of a fair, mutually agreeable decision. The mediation process can take place, broadly speaking, in either public or private-sector settings.

The context of mediation can be broadly understood to take place either in public or private settings. Mediation that is court-referred, or offered through the court system with mediators contracted through the court system, are examples of public-sector mediation. When the disputants choose, or are referred to, a mediator who has no contractual arrangement with the court system, they are involved in a private mediation setting. Mediators working in private settings can come from professions such as law, mental health counseling, family counseling/therapy, social work, or psychology. The general process of mediation is similar across both settings.

Initial meetings with mediators typically involve a description of the mediation process. Some information may be gathered regarding disputants' perspectives on separation and divorce, plans to communicate with family and friends about the divorce, and child support. If the couple chooses to pursue mediation a contract between the couple and a mediator is commonly signed (see Coulson 1996, for one example of a contract). Once a contract is signed initial meetings commonly include the following steps: (1) orientation and introduction; (2) information gathering to facilitate goal setting; (3) framing issues and developing options for mutual agreement; (4) reaching an initial settlement and drafting a tentative agreement for discussion with attorneys (and possible families); and (5) finalizing the agreement in court.

The divorce mediator (hereafter referred to as mediator) has the immediate task of creating an appropriate, respectful, working atmosphere where the mediator's neutrality is unmistakable (Schwebel et al. 1994). The mediator is faced with working with two people who have chosen to separate and divorce. The range and intensity of emotion can be great. Of paramount importance for the mediator is the instillation of hope; an opportunity to approach that which seems unapproachable: agreement. Though mediation can take place in public or private settings, be voluntary or involuntary, similarities exist regarding the initial tasks of the mediator. Beyond these similarities, numerous differences are possible given the array of mediation models.

Models of Mediation

Models of mediation can be conceptualized as being grounded in one of the four generally recognized mediation models (Beck and Sales 2001; Schwebel et al. 1994): legal model (Coogler 1978), labor management model (Haynes 1981), therapeutic model, and the communication and information model (Black and Joffe, 1978). The legal model (Coogler 1978), also referred to as structured mediation, is firmly controlled by the ground rules for mediation set forth by the mediator. Couples are seen together and discuss the issues of division of property, spousal support, child support, custody, and visitation, in this order. Discussion of these issues takes place over five two-hour sessions with the parties following a decision-making process clearly outlined by the mediator. The role of mediator is one of strict neutrality in which child advocacy and education of parents about children's needs is not encouraged. Both parties must use the same advisory lawyer who draws up a contract based on the decisions made in mediation. If failure occurs, referral to an arbiter is made.

The labor management model (LMM) (Haynes 1981) presupposes that mediation involves a bargaining process between parties with comparable levels of power, skill, and knowledge who can act in their own self-interest (Schwebel et al. 1994). Agreements must be viewed as adequate across eight criteria: (1) full disclosure of economic assets; (2) equitable division of assets; (3) no victims; (4) open and direct channels of communication between parents; (5) protected parental roles; (6) assumed access to children for both parents; (7) an explicit process for making future decisions; and (8) assured access to important relatives for the child or children. Mediators may meet individually with both parties to help prepare for negotiations. The mediator's role is active and directive, but shaped by the individual's needs. Knowledge of both legal and psychological issues related to divorce is essential for the mediator adopting this model. The approach is flexible and attends to the needs of the child or children.

The therapeutic model of divorce mediation is informed by the therapeutic theory chosen. Traditional conceptualizations of this model assumes participants cannot engage in effective communication and problem-solving until unresolved emotional and relational issues are addressed (Beck and Sales 2001). Unresolved emotional issues may require individual meetings with the mediator prior to any effort to produce a mutually acceptable agreement. Given the emphasis on relational issues and emotional impasses, the therapeutic model typically involves a greater number of sessions than other models (Schwebel et al. 1994). The mediator is active, directive, and child-focused, with the goal of facilitating a healthy family system. Attorneys have a more limited role in this model and typically are asked to review the agreement written up by the mediator. Agreements in the therapeutic model tend to emphasize cooperative language. If an agreement is unacceptable, parties can pursue other means to construct a workable agreement.

The appearance of the therapeutic model of mediation is dependent upon the therapeutic theory utilized. For example, Wayne Regina (2000) has grounded the mediation process in Bowen systems theory. Thus, mediation would focus on disputants' patterns of managing anxiety (i.e., triangulation), their ability to separate from emotion and process their emotional experience in mediation (i.e., differentiation). In contrast, John Winslade and Allison Cotter (1997) use narrative theory in conducting mediation. The focus is on the stories disputants tell of themselves that keep them from achieving agreement. Bowen systems theory and narrative theory are merely two examples of how a theory of therapy from the individual or family counseling/therapy contexts can be utilized to meet the objectives of mediation. See Beck, C. J. A. and Sales (2001) for further discussion of other therapeutic models of mediation.

The last general model is referred to as the communication and information model. This interdisciplinary model assumes that mutually agreeable agreements are attainable if the necessary information is freely available and exchanged (Black and Joffe 1978). Specialists from both the legal and mental health fields work together providing legal advice, resources in problem solving, drafts of the agreement, and focuses on specific details of the settlement (Beck and Sales 2001; Helm, Boyd, and Longwill 1992). An educational component is present, as parents are educated on the needs of their children and communication skills to assist in problem solving.

Across models variance is possible merely by the mediator's professional and personal background. For example, Bruce Phillips (1999) stresses the importance of active-listening skills as not simply a means to understand disputants' concerns but as a means to facilitate the change process. Carl Schneider (2000) stresses disputants' successful apologizing to maximize movement through the mediation process. Other concepts currently receiving attention in the literature include the importance of emotions for both mediator and disputants (Lund 2000; Retzinger and Scheff 2000) and theories power and feminism (Ellis and Wight 1998).

An emphasis on children's needs and their participation in the mediation process is one variation of mediation process that has received more detailed attention in the literature. Though educating parents about their children's needs is an aspect of all mediation models discussed above (except the legal mediation model), many researchers (Beck and Biank 1997a; Beck and Biank 1997b; Kelly 1996; McIntosh 2000) suggest mediators attend more to the needs of children. Wallerstein (1995, as cited in Beck and Biank 1997) views children as "hidden clients" as discussion of children's needs are not an emphasis of the mediation process. Focusing on children's needs occurs by helping parents assess the needs of their children as well as mediators conducting individual assessments with children. Allowing children to speak directly to a mediator may provide information that is more accurate than parent assessment, given the duress parents are under during divorce (Cohen, Dattner, and Luxenburg 1999; Johnston and Campbell 1988). This variation to the mediation process runs counter to the traditionally defined role of mediator (Beck and Biank 1997b), yet this role has its own variations.

Mediator's Role

Traditional theoretical formulations of the mediator's role are being reexamined. The traditional view of mediator was that of a neutral, honest facilitator of couples' decision-making processes (Emery 1994), with neutrality being the hallmark of mediator role. Neutrality has been defined as "scrupulously giving each disputant equal attention and doing exactly what is needed by each disputant" (Cohen, Dattner, and Luxenburg 1999, p. 342), being impartial and showing equidistance (Beck and Sales 2001; Cohen, Dattner, and Luxenburg 1999). Impartiality involves creating and maintaining an unbiased relationship with the disputants. Equidistance refers to the mediator's ability to have each disputant tell their position (i.e., balance the conversation so each has equal power in session). Connie J. A. Beck and Bruce D. Sales (2001) found numerous mediation researchers advocating against adopting an impartial stance as mediator. Cohen, Dattner, and Luxenburg (1999) have argued that mediators need to attend more to children's needs and assume a child advocacy role (Menin 2000). Those mediators whose training is in, for example, counseling, psychology, and social work, versus law can more easily adopt such an advocacy role (Cohen, Dattner, and Luxenburg 1999). Given that mediators are a diversely trained group, it is not surprising that some argue for clarity of training, standards, and mediator assessment (Bagshaw 1999; Bronson 2000). Ultimately the process of mediation, across all countries, needs improvement through professional standards (Bagshaw 1999).

Advantages of Mediation

The evolution of mediation process, theory, and the mediator's role seeks to better meet the purported advantages of the mediation process over litigation. General benefits argued to be unavailable through litigation include: the opportunity for each disputant to (1) air their concerns and be heard; (2) be assisted by a neutral third party; (3) and do so in a nonadversarial context (Beck and Sales 2001). Increased efficiency is one specific advantage purported by mediation supporters (Twaite et al. 1998). Supporters of mediation generally see mediation as avoiding the adversarial context that has the potential to increase the length and cost of reaching a settlement. A second advantage is increased accessibility to assistance in the divorce process. As mediation tends to be cheaper than litigation, those disputants who cannot afford a lawyer can afford to engage in the mediation process. Third, it has been argued that litigated settlements tend to be based on legal precedents versus addressing the unique needs of each disputant (Twaite et al. 1998). Mediation seeks to hear, understand, and address the unique situations and needs of disputants; creating settlements that are more personally relevant. The increased privacy that comes from mediation versus litigation is also seen as more related to the interests of the disputants. A fourth specific benefit of mediation is its greater potential than litigation for self-empowerment. Disputants in mediation experience greater self-efficacy and control as they play a more active role in mediation and have the opportunity to air their concerns and be heard in ways not available through litigation (this benefit forms the central goal of an emerging mediation model [Bush and Folger 1994]).

Joan Kelly's (1996) seminal research review article examining divorce mediation research conducted between 1986 and 1996 found robust support for the positive effect mediation has on settlement rates. Settlement rates ranged from 50 to 85 percent across studies, countries, and mediation contexts. Beck and Sales (2001), in their review of research conducted since 1996, found similar settlement rates for those disputants going through mediation. Kelly (1996) also reported that most studies indicate higher compliance rates and less relitigation for disputants using mediation versus litigation. Beck and Sales (2001) support Kelly's report but point out long-term compliance is not clearly evident, primarily due to methodological issues of the studies conducted to date. Mediation has been found (Beck and Sales 2001; Kelly, 1996) to reduce conflict and cooperation between disputants in most studies though the effects are small and short-lived, which supports the common belief that the effects of divorce for disputants and their families last long into the future. Research on the appropriateness of mediation shows that the field is still lacking knowledge on the effect of personality styles on mediation outcome (Kelly 1996). Despite substantial support for divorce mediation disadvantages do exist.

Disadvantages of Mediation

Detractors to mediation do exist (Twaite et al. 1998). Detractors' claims can be framed against the above-description of advantages. Viewing mediation as more efficient seems advantageous, yet, expediting the decision-making process may potentially threaten fairness. The litigation process, with its lawyers protecting client interests and disclosure rules ensuring full disclosure of information, can be seen to ensure fairness more than the informal and variable process of mediation. Regarding the espoused benefits of increased accessibility with mediation, it has been argued that the decreased cost of mediation is related to the fact that lawyers charge higher fees due to their greater level of expertise and legal status. As lawyers can better predict settlement outcome if a case goes to court, proponents of litigation contend that lawyers can thus provide better input to their clients. Moreover, the claims of Robert Bush and Joseph Folger (1994) for the potential for increased self-empowerment and growth have been critiqued on the basis of an erroneous assumption: equal power between disputants. James Twaite and his colleagues (1998) summarize the view of many detractors of mediation on this issue. Detractors believe the potential for inequitable settlement for women with the mediator's role of neutrality being inadequate to contain a dominant, or more powerful, disputant. Jessica Pearson (1997), speaking from a feminist perspective, believes mediation decriminalizes domestic violence by offering a conciliatory approach that does not hold the abuser accountable for his or her actions. Additionally, placing the abused and the abuser in the same room for mediation leads to obvious safety issues. Kelly (1996) and Pearson (1997) communicate the complex nature of researching this issue. Both conclude that mediation has been beneficial when domestic violence is a variable but only under certain conditions and only after adequate assessment.

International and Cultural Perspectives on Mediation

Divorce mediation is an international means of conflict resolution. For example, divorce mediation studies have been conducted in Australia (McIntosh 2000), England (Dingwall, Greatbatch, and Ruggerone 1998) Norway (Tjersland 1999), and Scotland (Mackay and Brown 1999). These studies all address aspects of mediation that also challenge mediators in the United States. The impact of custody decisions on children's mental health, the structure and effectiveness of mandatory divorce mediation, mediator competence, the influence of gender on the mediation process, and mediation models are issues equally relevant on an international level. However, perspectives on mediation unique to a given country are also present. For example, in Australia concern has been given to the relevance of Western-based models of mediation. In Scotland, where the legal system is separate from the UK-based umbrella organization, over-seeing mediation in Scotland challenges the coordination of services. Studies have focused on cultural issues (e.g., value incongruence between mediation models and mediation participants of Asian descent) and the lack of relevant research on mediation with specific ethnic populations (e.g., Hispanic, African-American, Asian) (Molina 1999; Wong 1995). International research requires development on methodological as well as on cultural fronts (Beck and Sales 2001).

New mediation models are also being developed internationally. Canada, for example, has seen the development and increased use of what has been referred to as collaborative divorce or collaborative family practice (Sacks 2000). In short, these models discard the adversarial stance of most mediation models in favor of a model that emphasizes win-win solutions, a both/and perspective on parties' interests, difference in perceptions over right or wrong perceptions, empathic responses over defensive or aggressive ones, curiosity and compassion over judgment and blame, both parties against a problem over both parties against one another, and empowerment over domination. These premises are highlighted in a process that involves an interdisciplinary team. Such teams may be comprised of the relevant parties, lawyers, a divorce coach (i.e., facilitating understanding of and movement through the divorce process), a child specialist (i.e., speaking as a voice for the needs of children involved), and a financial specialist (i.e., providing budgetary and financial assistance). The collaborative model is well received in Canada as it has been experienced as healthier than other models (MacDonald 2000). At the beginning of the twenty-first century, those involved in divorce mediation are beginning to emphasize the creation of healthy relationships and not simply a resolution of some conflict as the outcome of divorce mediation.

See also:Child Custody; Conflict: Couple Relationships; Divorce: Effects on Children; Divorce: Effects on Couples; Divorce: Effects on Parents; Relationship Dissolution


bagshaw, d. (1999). "developing mediation standards:an australian experience." mediation quarterly 16: 389–406.

beck, c. j. a., and sales, b. d. (2001). family mediation:facts, myths, and future prospects. washington, dc: american psychological association.

beck, p., and biank, n. (1997a). "enhancing therapeuticintervention during divorce." journal of analytic social work 4:63–81.

beck, p., and biank, n. (1997b). "broadening the scope ofmediation to meet the needs of children." mediation quarterly 14:179–199.

black, m., and joffee, w. (1978). "a lawyer/therapistteam approach to divorce." concilliation and courts review 16:1–5.

bronson, s. (2000). "improving mediator competence through self-assessment." mediation quarterly 18: 171–179.

bush, r. a. b., and folger, j. p. (1994). the promise of mediation: responding to conflict through empowerment and recognition. san francisco: jossey-bass.

cohen, o., dattner, n., and luxenburg, a. (1999). "thelimits of the mediator's neutrality." mediation quarterly, 16:341–348.

coogler, o. j. (1979). "divorce mediation: a means offacilitating divorce and adjustment." family coordinator, 28:255–259.

coulson, r. (1996). family mediation. san francisco:jossey-bass.

dingwall, r.; greatbatch, d.; and ruggerone, l. (1998)."gender and interaction in divorce mediation." mediation quarterly 15:277–287.

ellis, d. and wight, l. (1998) "theorizing power indivorce negotiations: implications for practice." mediation quarterly 15:227–244.

emery, r. e. (1994). "mediation: negotiating agreements and renegotiating relationships." family relations 44:377–383.

haynes, j. m. (1981). mediation. new york: springer.

helm, b.; boyd, l. w.; and longwill, c. k. (1992). "professional interdependence in divorce practices: the psychotherapist and the mediator." famiy and conciliation courts review 30: 385–396.

johnston, j. r., and campbell, l. e. g. (1988). impasses of divorce: the dynamics and resolution of family conflict. new york: free press.

kelly, j. (1996). "a decade of mediation research: someanswers and questions." family and conciliation courts review 34:373–385.

lund, m. e. (2000). "a focus on emotion in mediationtraining." family and conciliation courts review, 38 (1):62–68.

mcintosh, j. (2000). "child-inclusive divorce mediation:report on a qualitative research study." mediation quarterly 18:55–69.

mackay, r. e., and brown, a. j. (1999). "practice issues in community mediation." mediation quarterly 17: 181–195.

menin, b. (2000). "the party of the last part: ethical and process implications for children in mediation." mediation quarterly 17:281–293.

molina, o. (1999). "the effects of divorce on africanamerican working women." journal of divorce and remarriage 32:1–15.

pearson, j. (1997). "mediating when domestic violenceis a factor: policies and practices in court-based mediation programs." mediation quarterly 14: 319–335.

phillips, b. (1999). "reformulating dispute narratives through active listening." mediation quarterly 17: 161–168.

regina, w. (2000). "bowen systems theory and mediation." mediation quarterly 18:1–11.

retzinger, s., and scheff, t. (2000). "emotion, alienation, and narratives: resolving intractable conflict." mediation quarterly 18 (1):71–85.

schneider, c. d. (2000). "what it means to be sorry: thepower of apology in mediation." mediation quarterly 17:265–279.

schwebel, a. i., gately, d. w., renner, m. a., andmilburn, t. w. (1994). "divorce mediation: four models and their assumptions about change in parties' positions." mediation quarterly 11: 211–227.

tjersland, o. a. (1999). "evaluation of mediation andparental cooperation based on observations and interviews with the clients of a mediation project." mediation quarterly 16:407–423.

twaite, j. a., keiser, s., and luchow, a. "divorce mediation: promises, criticisms, achievements, and current challenges." journal of psychiatry and law 26: 353–381

twaite, j. a., and luchow, a. (1996). "custodial arrangments and parental conflict following divorce: the impact on children's adjustment." journal of psychiatry and the law 24:53–75.

winslade, j., and cotter, a. (1997). "moving fromproblem solving to narrative approaches inmediation." in narrative therapy in practice: the archaeology of hope, ed. g. monk, j. winslade, k. crocket, and d. epston. san francisco: jossey-bass.

wong, r. r. (1995). "divorce mediation among asianamericans: bargaining in the shadow of diversity." mediation quarterly 33:110–128.

other resources

macdonald, j. c. (2000). "collaborative family practice:a new approach." joel miller's family law centre. available at: www.familylawcentre.com/macdonald.html.

sacks, m. (2000). "collaborative divorce and separation."available at: www.collaborativedivorce.ca/intro.html.

david m. kleist