Academic journal article
By Sobourne, Anne K.
Texas International Law Journal , Vol. 38, No. 2
The process of mediation as a means of dispute resolution has existed for thousands of years.1 From Ancient China to the New Testament, mediation has been chronicled as a mechanism for resolving conflict.2 Furthermore, mediation has historically crossed cultural boundaries, being employed in African, Native American, European, and early American colonial communities.3 The twentieth century evinced many cultures and communities continuing to invoke this alternative dispute resolution method as a substitute for the adversarial process and the courts.4 For example, in both Japan and China, mediation remains the principal method for dispute resolution.5
Though conventional mediation has had a detailed past, the launch of divorce mediation in the United States and elsewhere occurred for the most part through a shift in divorce theory, during the 1970s.6 For the past three decades, society has grown more accepting of divorce, and as a result, many nations have drafted no-fault divorce laws. These laws have fundamentally changed the role of the court in divorce proceedings from its prior role of determining who is at fault for the dissolution of the marriage to its current role of deciding how to split a couple's assets based on considerations of fairness.7 From no-fault divorce laws, a no-fault divorce resolution procedure emerged which allows parties to settle disputed issues such as custody, alimony, and property division, away from the adversarial process.8 The force propelling mediation in the divorce context is the need for creative solutions, solutions which legal codes may be incapable of providing.9 Legal rules are often unable to accommodate a couple's particular situation because they are too rigid, and they therefore fail to incorporate the parties' desires.10
Soon after the no-fault divorce laws appeared, several U.S. states and a number of other nations drafted legislation that required or encouraged the use of mediation for certain types of cases.11 Since devising the first mediation statutes, the ability of states and nations to settle divorce disputes through mediation programs has grown exponentially.12 For example, in the United States, Massachusetts and Connecticut were the first to pass legislation mandating mediation in custody cases in 1980;13 by 1997, 2000 mediation programs were estimated to be operational, many offering divorce mediation.14
Although many nations are now mandating or suggesting mediation in the settlement of divorce cases, the theories that underlie each nation's legislation differ greatly. In analyzing the legislative implementation of mediation programs, this paper will demonstrate that U.S. national and state lawmaking bodies are often motivated by one or more of five theories governing alternative dispute resolution. As lawmakers contemplate a particular goal in drafting the legislation, each theory assists in meeting that goal.
The first motivation for mediation legislation is adherence to tradition, where mediation has long been operational and often the sole means for settling disputes. Second, mediation can be a mechanism for lowering the nation's divorce rate. Advocating reconciliation is a common trait found in legislation requiring or suggesting mediation and is often implied in the legislation itself. The third cause for implementing mediation is to advocate for children in the divorce process, as divorces often result in custody and support battles. Mediation-employed to ensure that the needs and interests of the child are considered-permits children a voice in a process in which they are easily overlooked. Fourth, legislatures of nations where women lack equality have employed mediation as a way to empower women. Although women were once not allowed to divorce, mediation has been invoked to ensure greater equality in the familial structure. Finally, the fifth rationale behind mediation legislation is to make the legal process more efficient. …