Social Work and the Pursuit of Justice through Mediation

Article excerpt

Key words: alternative dispute resolution; criminal offenders; divorce; mediation; victims

Alternative dispute resolution methods, including mediation, arbitration, and negotiation, have been used worldwide for centuries. Although most recently developed to divert certain types of disputes from the backlogged formal court process, these methods are still referred to as "alternative" processes. In fact, methods such as "domination through physical force, duels, war, coin tosses, treaty negotiation, adjudication, and mediation" (Milne, 1985, p. 3) have been prominent courses of action since the early days of civilization. Many accounts of the use of arbitration are found in the Bible (Chaykin, 1984), and a variety of cultures from Africa to China to the United States have relied on mediation procedures (Milne, 1985).

In mediation the parties involved in the dispute voice their personal problems and definitions; offer solutions to the problems; discuss possible compromises; and, if successful, agree on a resolution. The parties are assisted in this process by a neutral, objective third person--the mediator--who facilitates problem definition and solving by using a variety of communication techniques and by refusing to engage in therapy, lawyering, and decision making.

This article discusses divorce and victim-offender mediation and is intended to stimulate dialogue about creative ways in which mediation can be used to promote peaceful, win-win resolutions of interpersonal conflicts. The authors are committed to mediation as a viable method by which disputing parties can realize swifter and more personally meaningful justice than by using the courts, the traditional adversarial venue. The mediation process complements social work's values by empowering clients to plan for their future and doing so with a problem-solving focus.

Divorce Mediation

In 1980 nearly 1.2 million divorces affected America's children (U.S. Bureau of the Census, 1989, cited in Gerber, 1990). About 1 million divorces occur each year, and nearly one in five school children live in single-parent households (White, 1990). Traditionally, divorcing spouses have battled in the courtroom, where the private relationship suddenly is made a public affair: "Every cry of anguish or protest can become a matter of public record" (Stuart & Jacobson, 1986-87, p. 72). Divorce, however, is not simply a legal matter but rather a series of legal, social, psychological, economic, and sexual changes that occur over time (Wallerstein & Kelly, 1980). Although manifested differently, these changes affect the adults as well as the children.

Divorce mediation is a relatively new and rapidly growing area of specialization (Chandler & Chandler, 1987). In mediation spouses are ensured privacy while making decisions that will affect their future. At least 35 states and Washington, DC, have instituted mediation programs to deal with domestic relations issues (Goldberg, 1992).

Philosophical Rationale

It is generally believed that if couples can resolve their disputes in a minimally antagonistic, non-adversarial atmosphere, the volatile interpersonal nature of divorce disputes will be diffused, and any children involved will benefit. In support of this philosophical rationale, Stuart and Jacobson (1986-87) pointed out that "it is a paradox that, while poor communication is a contributing factor in many divorces, a couple's success in ending their marriage hinges on their ability to exchange information effectively" (pp. 79-80).

In divorce mediation spouses control the subject matter of the negotiations and focus on the anticipated needs of their children and themselves as single parents. In contrast, the adversarial divorce process takes control away from the spouses and often focuses on the wrongs of the past rather than on the building of a new future for all involved.

The courts have neither the capacity nor the structure to accommodate the dynamics of the human variables essential for restructuring the postdivorce family unit. …