MEDIATION

How Mediation Works

Mediation is defined as any strategy or approach to resolving conflict that arrives at a settlement agreeable to the parties. In divorce mediation, the spouses meet with an impartial third party to reach an agreement regarding child custody and other issues. Two forms of divorce mediation are generally recognized. Child custody mediation is specific to the issues of each parent's right to custody and visitation of their children. Comprehensive divorce mediation deals with other issues such as property distribution and spousal support. Some mediation programs involve an average of two or three sessions, whereas others may use as many as ten sessions.

Unlike adversarial methods of reaching divorce settlements, such as litigation or out-of-court negotiation between the spouses' lawyers, mediation occurs with one professional, assumes the parties will cooperate to reach an agreement rather than compete to get the most for themselves, and allows the spouses to make their own decisions. Although some forms of mediation may address underlying interpersonal or individual problems, mediation is unlike marriage therapy because it does not aim for reconciliation. The goal of mediation is for the couple to reach a fair settlement that allows the marriage to be dissolved.

As of 1994, five states (California, Maine, New Mexico, Oregon, and Wisconsin) required mediation as a mandatory first step in resolving child custody disputes, while seven states (Alaska, Colorado, Connecticut, Illinois, Iowa, Kansas, and Louisiana) provided for mediation as part of the state family courts on a discretionary basis, depending on the nature of the divorce disputes. As of 1999, some states still did not have statutes regarding mediation but allowed individual jurisdictions within those states to enact local rules, whereas in other states (Michigan and New Hampshire) mediation was voluntary, that is, the courts mentioned its availability to the parties involved.

In addition to court-based mediation, there is now a growing use of mediators in private practice. While court-based mediators often are social workers or other mental health professionals, private mediators tend to be attorneys, many of whom have also served as divorce attorneys. As divorce mediation becomes a "growth industry" for attorneys, questions have arisen about the appropriate role for lawyers and the potential ethical dilemma of dual representation. Researchers have raised questions about the appropriateness of mediation in cases of domestic violence or abuse. Mediation also may not be appropriate when other severe power imbalances exist between the two parties, such as in cases of alleged child abuse or neglect, mental health problems, or borderline intellectual functioning.

How Mediation Affects the Settlement Process

There are important limitations to studying the effects of mediation. First, the vast majority of divorce cases end in out-of-court settlements, with only 10 percent of cases going to trial. Other than mediation, settlements are reached out of court by negotiations between the parties' lawyers. In some mediation cases, each party's lawyers review the settlement before the agreement is presented to the court, a process that still involves lawyers and the courts. Second, the prevalence of privately held mediations is difficult to measure, because no reporting is required and the divorce judgment often does not indicate whether the settlement was arranged by a private mediator. Thus, it is sometimes hard to compare mediated and litigated settlements, especially among those that are reached out of court. Finally, couples may "self-select" for mediation or litigation based on such factors as the degree of conflict and cooperation (more acrimonious disputes and less cooperative couples tend to bypass mediation) and socioeconomic factors such as employment, education, and income (parents with higher income, education, and employment status tend to select mediation, particularly private mediation).

Much of the research evaluating mediation has shown positive results, but there are some notable gaps. Mediation appears to improve the rate at which couples reach agreement. In a 2000 review of the literature, from 50 percent to 85 percent of mediated divorces reach agreement and most studies report agreement rates in the upper part of this range. Settlement rates are equally high for all forms of mediation and do not vary according to the amount of time the mediation required. Mediation also substantially reduces court caseloads by diverting some couples before they reach the court. Reports from Los Angeles County in the mid-1980s, shortly after California became the first state to mandate mediation, suggest that custody hearings may be reduced by as much as 75 percent. Evidence also supports the lower cost of mediation compared with litigation, and, because the settlement was reached cooperatively, mediation may reduce the number of couples who return to court, that is, the rate of relitigation. This is an important consideration in light of reports that as many as one-third of all litigated divorces involving child custody typically return to court within two years.

The evidence for the effects of mediation on relitigation rates is nevertheless mixed. One study that tracked couples for two years found that those who reached a divorce settlement through mediation were less than half as likely to return to court than those couples whose settlements were court-ordered. Also, mediated divorce settlements were reached in about half the time. In another two-year study, couples with mediated agreements were six times less likely to return to court than those whose disputes were settled in court. Although little research has followed couples beyond the two-year postsettlement period, one study tracked couples over a nine-year period but found no differences in relitigation between those who mediated and those who litigated the initial settlement. There was, however, a relatively high attrition rate of 48 percent, which is to be expected after nine years. There are other studies that have also reported no differences in relitigation rates.

Typically, after the initial settlement is reached in litigation, the custodial parent faces the possibility that the noncustodial parent will not comply with the court order, including both child support payments and custody arrangements. Because mediation is more cooperative, parents should show higher levels of compliance. Research supports this notion: In practically all studies, parents who used mediation reported fewer difficulties with compliance.

How Mediation Affects Parents and Children

The negative psychological effects of divorce on parents and children may be directly or indirectly a function of the adversarial approach, which often maintains and even fuels hostility between divorcing parents. Mediation should provide psychological benefits for both parents and children, such as decreasing bitterness and tension and increasing communication between the parents. The research findings are not completely clear, however. While some studies indicate that couples in mediation show greater cooperation and improved interpersonal relationships after the divorce settlement, some studies have found no consistent differences in psychological adjustment that could be attributed to the mediation itself. These inconsistent findings may be due to preexisting differences between the mediation and litigation groups. Other studies found that the couples who had mediation were more satisfied with the divorce settlement and reported doing much better up to one year following the settlement.

Mothers and fathers appear to differ in their satisfaction with mediated settlements. These differences, however, may be related to the type of custody presumption applicable in the states where the research was done and differences in custody outcomes between mediation and litigation. Generally, litigation is more likely to result in the award of sole custody to the mother. In states where the primary presumption of custody favors the mother in a sole custody arrangement, mothers tended to be more satisfied with their settlements than fathers. Mediation tends to produce more joint legal custody agreements, and in those states where the custody presumption favored sole mother custody, fathers who mediated were more satisfied than those who litigated. But in states where the custody presumption favored joint legal custody, both fathers and mothers who mediated were more satisfied than those who went to court.

Compared to litigation, mediated settlements also resulted in both parents maintaining greater involvement with their children. In one long-term study, nine years after the initial divorce settlement, couples who used mediation reported more contact with each other than those whose settlements were litigated. As well, both parents were more involved in their children's lives and reported more frequent communication with the other spouse about the child or children.

It is logical to presume that mediation will positively influence children's adjustment, by improving parental cooperation and communication and maintaining contact between the noncustodial parent and the children. Studies of the effects of divorce on children's adjustment strongly support the positive effects of increased parental cooperation and decreased conflict in the post-divorce period. For mediation, however, the research is surprisingly sparse. Studies have failed to show significant improvements for children as a result of the parents' mediation. This lack of empirical support parallels the mixed evidence on the benefits of mediation for the parents' adjustment.

The critical question is whether one should expect such enduring effects on children and parents. The benefits of mediation appear to occur primarily in the short term by improving compliance, reducing relitigation, and decreasing the time required for the couple to reach a settlement. While mediation has significant benefits over litigation, the research evidence is far from conclusive, particularly concerning the link with improved psychological adjustment of parents and their children. Mediation has an important place in helping families through the initial stress of divorce, but it should not be viewed as a solution for coping with the long-term issues that arise after the dissolution of a marriage.

See also: CHILD CUSTODY AND SUPPORT; DIVORCE

Bibliography

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Emery, Robert E. Renegotiating Family Relationships: Divorce, Child Custody, and Mediation. New York: Guilford Press, 1994.

Emery, Robert E. Sage Developmental Clinical Psychology and Psychiatry Series, Vol. 14: Marriage, Divorce, and Children's Adjustment. Thousand Oaks, CA: Sage, 1999.

Emery, Robert E., and Melissa M. Wyer. "Divorce Mediation." American Psychologist 42 (1987):472-480.

Emery, Robert E., Sheila G. Matthews, and Melissa M. Wyer."Child Custody Mediation and Litigation: Further Evidence on the Differing Views of Mothers and Fathers." Journal of Consulting and Clinical Psychology 59 (1991):410-418.

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Kelly, Joan B. "The Determination of Child Custody." Future of Children: Children and Divorce 4 (Spring 1994):121-142.

Gary Resnick