Motivations for Mediation: An Examination of the Philosophies Governing Divorce Mediation in the International Context
Sobourne, Anne K., Texas International Law Journal
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. Since divorce affects parties both monetarily and emotionally, legislatures mandate or encourage processes to limit these costs. The following analysis details each theory as illustrated by the laws and histories of several nations.
II. THE MOTIVES BEHIND MEDIATION LEGISLATION
A. The Traditionalist
Several countries and cultures have long employed mediation as the principal means for conflict resolution.15 The shift to include mediation in divorce cases occurred early, and these nations have maintained their commitment to the alternative dispute resolution process.16 The most notable countries in this category are China and Japan.
Through the implementation of mediation in ancient times, China has one of "the largest and most comprehensive mediation programs of any country in the world . . . where mediators are expected to be available to settle disputes twenty-four hours a day."17 The use of mediation in divorce can be traced to the seventeenth century and the beginning of the Qing Dynasty, where familial disputes were settled by the head of the particular family, usually a father, grandfather, friend, or relative. Disputes were settled according to the parties' status, the husband being the superior party.18 Litigation was believed to conflict with traditional Confucian values, which stressed "social order, responsibility, hierarchy, [and] harmony."19 These values were imbedded in the Chinese familial structure. Under Confucian ethics, the Chinese were expected to abide by their social status in everyday life.20 In an attempt to perpetuate a particular social structure, divorce was rare, and mediation focused on reconciliation.21 Therefore, Chinese statutes were "penal in nature and designed to prevent disruption of public order . . . . Since law had a mere deterrent effect, mediation accompanied by instruction and persuasion was the preferred means of resolving disputes."22
The mediation practices instituted in ancient China were maintained by the People's Republic of China. In addition, new developments occurred in the twentieth century, including "neighborhood committees" charged with resolving conflict as well as the reform of China's marriage laws.23 The new laws, however, were used to retain the traditional family structure contemplated by the government.24 The Marriage Law of 1950(25) stated that when only one spouse sought a divorce, the couple was legally required to attend mediation by the district government.26 The same rule applied when the couple agreed to divorce but could not agree on the division of property.27 However, the resolution of the dispute often resulted in forced reconciliation and, as envisioned by Confucian heritage, the couple was encouraged to "remain married in order to maintain the stable socialist family system."28 Thus, by requiring mediation, the new system guarded against divorce with the issuance of the government's opinion that a basis for a marriage continued.29
In 1980, the marriage laws were once again reformed, and a new Marriage Law was enacted, relaxing the requirements for divorce.30 If both parties consent to the divorce, a certificate of divorce may be issued fairly quickly.31 If one party petitions for divorce, mediation remains a requirement, and the government's continued hope of reconciliation is pursued.32 If mediation fails, however, a divorce may be granted.33 Although the reformed law suggested a move toward using mediation to obtain a divorce rather than save a marriage, the last decade has shown a return to the promotion of reconciliation.34 The shift reflects both a backlash against the increase in the divorce rate and the desire to return to traditional values.35 Therefore, contemporary China's commitment to the alternative dispute resolution process incorporates a desire to keep marriage intact as well as its adherence to tradition. It is this long-standing tradition that intrigues Western supporters of divorce mediation.36
Like China, Japan has used mediation for centuries to resolve conflict.37 The notion of "family" and the use of mediation has influenced Japanese governmental policy. Mediation is required before filing suit in most family law disputes-a practice that encourages the conservation of the traditional family model.3 In the context of divorce, spouses must participate in mediation prior to pursuing divorce.39 Also similar to China, only public mediation is available, which is operated by the government, and Japanese petitioners may not choose their mediators.40
The requirement to mediate is again attributed to Confucian beliefs where "the great disrupter of society within Confucianism is confrontation, leading to conflict and social disorganization."41 The Japanese concentrate little on the rights of the individual and focus instead on the greater good of the society: "By setting social harmony as its primary goal, Japanese dispute resolution is inherently conciliatory."42 Mediation continues to be the primary process for dispute resolution in divorce cases in Japan, where the success rate for settling divorces outside of court has risen to above ninety percent.43
Both Japan and China exhibit an adherence to cultural norms that make social harmony paramount, resulting in a detailed method for using mediation in divorce proceedings. This particular method for solving disputes is anchored in their concept of justice.44 For those who advocate a greater use of alternative dispute resolution, China and Japan may serve as models for imbedding the practice into the culture. History has fortified mediation's role in these societies, but reformers call for greater rights for the parties during the process.45 Subordinating the will of the state to the will of the parties is unlikely in these nations, but pressure to equalize the parties must continue.
The notion of reconciliation also plays a significant role in the use of mediation and in the outcome of the case. As the next section suggests, the use of mediation to preserve the marriage and to lower the divorce rate is another common motivation for mediation legislation.
B. Reconciliation to Reduce the Divorce Rate
Across the globe, marriages are failing at an unprecedented rate. A recent study has indicated that no-fault divorce legislation has led to a remarkable increase in the number of divorces.46 To combat this increase, a contemporary phenomenon in divorce legislation has occurred: Legislators have now resolved to curb the problem and are attempting to make divorce more difficult.47 Many nations have enacted mediation statutes to force parties to communicate with each other in hopes of reconciliation.48 Their legislative purpose is to curtail a consistent increase in the divorce rate in their countries.
Until the mid-1990s, Ireland was one of the last countries in the world-and the only nation in the European Union-with a constitutional ban on divorce.49 The Irish Constitution considers the family "as a necessary basis of social order and as indispensable to the welfare of the Nation and the State," conferring on it "inalienable and imprescriptible rights, antecedent and superior to all positive law."50 In 1995, the citizens voted by slight majority to lift the ban on divorce;51 nevertheless, the Irish protection of the institution of marriage, as illustrated in the Constitution, resonates in the new law.52
The codification of family values can be traced to the Catholic Church's influence on the drafting of the Irish Constitution of 1937.53 Although the Church was not officially given legal recognition, "it is crucial to realize that in a country where law originated from despised oppressors for centuries, the individual citizen probably respected and followed his local priest more than policemen or distant parliamentarians."54 Catholicism continues to remain influential in Irish policy making where over ninety percent of the Irish population professes Catholicism as their religion.55 The Catholic influence perhaps can be credited with the number of requirements in the Act that must be fulfilled before a divorce can be obtained, including mandated mediation.
The use of mediation in spousal conflicts began with the Judicial Separation and Family Law Reform Act of 1989.56 The Act, which allowed for judicial separation when several circumstances were met, included the express objective "to facilitate reconciliation between spouses."57 The goal of preserving the marriage could be accomplished a number of ways including mandating a solicitor to encourage the use of mediation.58 Mediation is also encouraged to safeguard marriage in the Family Law Act of 1996, commonly known as the Divorce Act.59 The preventive measures make divorce a lengthy process and are designed to continue to encourage reconciliation. Under the Act, for example, the judge must believe that reconciliation is impossible, and a petitioner's solicitor must discuss mediation to effect an amicable separation.60 Furthermore, the Act requires that the couple be separated a lengthy period-four of the last five years-before a divorce petition may be granted.61
The lengthy separation period and the encouragement of out-of-court procedures such as mediation and counseling reflect the persisting desire to save marriages and guard against the surge of divorces that has occurred in other countries.62 Ireland's history incorporates the sanctity of marriage as a fundamental belief, and the 1996 Act attempts to prevent a basic breakdown in the family social structure.63 Encouraging the use of mediation in the context of Irish divorce law suggests an expectation that the resulting solution will be reconciliation.
The Lord Chancellor's Department has stated that "the Government is committed to marriage and the family."64 With the drastic rise in the number of divorces in the early 1990s,65 English government officials looked for ways to halt the increase in the breakdown of marriages. Although England enacted a no-fault divorce law in 1969,66 which required a two-year separation, the majority of couples still chose the quicker divorce route (as quickly as three months) by alleging fault, resulting in an increase in divorce litigation.67 Notwithstanding the admission that the government may have little effect on the dynamics of couples, the government continues to argue that slowing the divorce process may allow more time for couples to consider continuing their marriage.68
To stabilize and reduce the divorce rate, the Family Law Act of 1996 was introduced, radically reforming past divorce laws.69 The Act aimed to curb the dissolution of marriages and, similar to Ireland's Divorce Act, the philosophy of the Family Law Act advocated reconciliation.70 Its drafting was a compromise between those who wanted to liberalize the no-fault provision of the past Act and those who wanted to save marriages.71 The result? The Act incorporated several qualifying factors to limit the number of divorces, while it reduced the no-fault waiting period to a minimum of one year for divorces where no children are involved and eighteen months in divorces involving children.72 "As a condition precedent to the granting of a divorce . . . it require[d] that the petitioning party issue a 'statement of marital breakdown' . . . following this statement's publication, the Act requires that the parties enter upon a 'period of reflection and consideration.'"73 The time for reflection included attendance at a mandatory informational meeting where the parties must be given information regarding "marriage counseling . . . other marriage support services . . . [and] mediation."74 Under the Act, mediation was a voluntary process that allowed the Lord Chancellor to ascertain those circumstances where attendance would not be required. However, couples were encouraged to use mediation rather than the court to sort out custody and property issues.75 Prior to implementing mandated mediation, however, pilot programs examining different model schemes were instituted.76
The motivation for the Act was admittedly "'pro-marriage: [as] it encourage[d] counseling, mediation, reconciliation, [and] the promotion of good relationships.'"77 Furthermore, the Act preferred the use of alternative dispute resolutions to that of filing divorce proceedings in the court.78 In an issued report by the Lord Chancellor's office titled Looking to the Future-Mediation and the Ground for Divorce, the Lord Chancellor verifies the government's involvement in the promotion of certain values including a "desire to support and maintain family life."79 The report states that even when parties believe that a marriage is unsalvageable, a marriage can be reconciled where "mediation is a 'door' to reconciliation."80 The report continues:
The law of divorce should reflect the seriousness and permanence of the commitment involved in marriage. It should ensure that divorce is riot so easy that the parties have no incentive to make a success of their marriage and, in particular, to overcome temporary difficulties.81
However, only five years after this pronouncement, the government retreated and solicited Parliament to repeal Part II of the Family Law Act which mandated the informational meetings prior to granting divorces.82 In proffering an explanation for its request to repeal, the government claimed that compelled attendance at mediation meetings did not satisfy "government objectives of saving marriages or helping divorcing couples to resolve problems with a minimum amount of acrimony."83 In examining compulsory mediation, the pilot programs demonstrated that the requirement for the informational meetings proved too costly for the government and were unrealizable.84 The compulsory meetings reinforced the "desire for legal advice" in divorce cases.85
Notwithstanding the elimination of the compulsory informational session, the government continues to advocate the use of mediation prior to initiating divorce proceedings.86 The government's commitment to support mediation includes a national advertising campaign where information is given to those who respond.87 The repeal of the mandatory mediation provision suggests a shift in motivation-from saving marriages to promoting greater amicability in divorce disputes. Nevertheless, the government continues to make a strong effort to educate its citizens about the advantages of the mediation process and its usefulness in civil disputes.88 Should the divorce rate continue to rise, requisite mediation may again return to the forefront of the debate concerning divorce legislation and the desire to preserve savable marriages.
The use of mediation in Ireland and England illustrates a paternalistic motive-the desire to keep marriages together. Much like the notion of a social norm in China and Japan, mediation in the United Kingdom concentrates on the institutionalization of the ideal rather than adhering to the intrinsic benefits of mediation. These instrinsic benefits include providing a customized solution for the couple, insulating the children from the adversarial process, and protecting the divorcing spouses from what would otherwise be a grueling process. An inherent desire to reduce the number of divorces underlies divorce legislation in both countries. The result is that the will of the parties may be ignored. Fixated solely on reconciliation, countries like England and Ireland either ignore or mask significant difficulties in the relationship. Consequently, the unhappiness of the parties may persist. Mediation gives control to the parties in Grafting a distinctive and individual solution. To force reconciliation discharges the parties' control and transfers control back to the court. Perhaps England is now moving in the right direction by informing divorcing couples about the availability and advantages of the process while limiting interference with the result.
C. Child Advocacy
It is clear that a divorce affects not only spouses but children as well. Studies suggest that divorce may lead to "depression, aggression . . . and diminished academic performance."89 In removing the fear and hostility that may be associated with adversarial divorce proceedings, divorce mediation helps parties generate solutions that benefit couples as well as children.90 For example, the Council of Europe has encouraged the implementation of mediation "reflect[ing] the growing universal notion that the use of mediation is the best approach for resolving family controversies."91 It claims that "mediated agreements are a vital component of making and maintaining cooperative relationships between divorcing parents because the mediation process reduces conflict and thus facilitates contact between children and both parents."92 Several jurisdictions have begun to implement mediation, attempting to ensure that the needs of the children are the paramount considerations.93 As mediation provides creative solutions and requires the assent of parties to such solutions, the process can be beneficial in disputes regarding custody, visitation, and child support.94
Face-to-face negotiations between the parents, encouraged and supervised by a neutral third party, can facilitate the parents' transition from hostility or alienation that may result from the breakdown of their relationship to a constructive, cooperative approach to their joint concern for their children.95
Furthermore, the children, depending upon their age, may be permitted to participate in the process.96 Although the best interest of the child may be a policy consideration of courts in divorce proceedings, representing their interest becomes difficult when the attorneys represent the interests of the parties and not the interests of the children.97 Mediation can give greater power to children, and legislatures have begun to recognize the usefulness of exploring the children's interests through the mediation process.
"The use of mediation to settle disputes between divorcing couples regarding child custody has been characterized as a national movement."98 The implementation of joint custody, where new disputes have emerged regarding time-sharing and child support, has spurred on this movement.99 Several states have reacted to the increase in the divorce rate due to no-fault divorce and the joint-custody evolution by implementing mediation statutes that either mandate mediation or grant the court discretion to order mediation in divorces involving children.100 Although the approach varies from state to state, child advocacy remains a common tie that spans jurisdictions. The next section will profile the approaches of several states concerning mediation legislation.
West Virginia, for example, has made child advocacy a priority in solving divorce disputes.101 The legislature has recently enacted a policy "to assure that the best interest of the child is the court's primary concern."102 The legislature encourages mediation in disputes regarding separation and divorce. The court may also require the parties to attend mediation to resolve visitation issues.103
Maryland also grants the court discretion in determining whether mediation is appropriate and "likely to be beneficial to the parties or the child."104 Maryland's statute, therefore, requires judges to assess all divorce cases involving children and evaluate the needs of the children before going forward to trial.
Unlike the discretionary approach taken by West Virginia and Maryland, California orders divorcing parents to mediate whenever the dispute involves visitation or custody of the children.105 The California legislature has also imposed a duty on the mediator to evaluate and consider the needs of the children in the process.106 The mediator may conduct an interview with the children to carryout his duty.107
Idaho also mandates mediation if it is found that "mediation is in the best interest of the children and it is not otherwise inappropriate under the facts of the particular case."108 Furthermore, disputes that involve visitation and custody issues of minor children are also mandated to mediation.109
Several other states require mediation when visitation and custody controversy exists. Those states include Delaware, Florida, Kentucky, Maine, Nevada, North Carolina, South Dakota, Utah, and Wisconsin.110 Other jurisdictions continue to make mediation discretionary when issues affecting children are involved, including Arizona, Connecticut, Louisiana, Minnesota, Nebraska, Rhode Island, Texas, Washington, and West Virginia.111 Regardless of the amount of discretion granted to the court, it is clear that several states consider mediation an important tool in promoting amicable divorces for the sake of the children.
The legislation that mandates or encourages mediation due to the involvement of children focuses on devising parenting plans and custody arrangements.112 As research suggests, in custody battles, "mediation parents reach resolution of their disputes more quickly than litigation parents," and such cases "take less than half the time and half the cost" than litigation to produce an agreement.113 Furthermore, because "participation in a decision making process produces a higher level of satisfaction and compliance with the decision itself,"114 the research indicates that parents who mediate rather than litigate adhere to child support agreements at a greater rate and children have more contact after the settlement with both parents.115 However, the studies are controversial: As of 1996, few studies had been conducted to measure the actual effect of mediation on children of divorced parents, and the results of any studies done have proffered little.116 The advantages of mediation, which are believed to benefit children, are "hypothesized to ensue from the parents' involvement" since few children actually participate or take an active role in the mediation.117
It is possible that the demonstrated benefits of mediation stem from the fact that these few studies include only those who are predisposed to using the process. Parties willing to work together from the beginning may be predisposed to give priority to the interests of children and ensure that children have quality time with both parents after separation. Participants who look to mediation may also be more in tune with the effects of divorce on children and may make greater effort to limit such effects. Nevertheless, the more that jurisdictions continue to impose or suggest mediation as a means for securing a divorce, the more apt parents may be to research the best strategy to aid their children during that difficult time. Moreover, with greater access and more information about mediation in the public realm, the greater the number of creative and individualized solutions developed for the families. With the flexibility to take into account the parties' needs, the better the outcome for all involved, including the children.
D. Creating New Rights for Women
Recently, women's rights have experienced a globalization of sorts by which Western cultures have urged eastern nations to grant greater rights to women.118 Several topics have been highly publicized regarding this debate including female circumcision, education and literacy, and family legal rights.119 Within the context of family rights is the privilege of divorce, a controversy that has long existed in the Middle East and the countries that follow the teachings of the Koran.120 Islam's patriarchal society has stunted the rights of women, especially in the area of marriage and divorce, yet women are now fighting for these rights in hopes of liberation.121 Contemporary scholars and feminists now argue that the Koran advocates equality as evidence for their proposition that women should have greater rights.122 Although illiteracy and a lack of representation in policy-making roles plague the Arab world, Arab women continue to fight for equality and have gained ground in divorce rights.123 For example, in Egypt, the use of mediation has given women an opportunity to secure a divorce, an opportunity that was barely available to them.124
After several years of reform, in 2000, Egypt finally drafted amendments to the Personal Status Law,125 the law governing divorce. These amendments generated a significant step toward greater equality.126 Prior to the amendments, women, unlike men, were unable to obtain a divorce without first proving mental or physical abuse.127 An amendment to the statute now allows women to obtain a no-fault divorce when certain criteria are met including participation in mediation and the return of her dowry.128
The change in the law came very slowly. In 1990, the wife of the President of Egypt, Suzanne Mubarek, first introduced the legislation.129 A debate ensued involving parliament, academics, civil libertarians, conservatives, and Muslim scholars "who agreed there was justification within Islam for the proposed changes."130 Opposition to the amendments was extensive. Many alleged that women were too irrational to allow them to divorce, arguing that these proceedings would disrupt the family; however, with the blessing of religious clerics, civil court judges, and family lawyers, the law passed parliament and was signed by President Hosni Mubarck.131
In the new law, the requirements placed on women do not parallel the ease with which men are able to terminate their marriages. The new law, however, should be considered a step toward equality.132 The amendment is a return to the notion of the khul' divorce: "a traditional Muslim process whereby a woman can obtain a divorce without the agreement of her husband by returning the dower gifts and money he gave her at the time of their marriage."133 At the heart of this new statute is mandatory mediation, also a component of the khul' divorce, where court-supervised, sixty-day mediation is required and employs decision makers from the family.134 If the divorce involves children, the amendment requires the spouses to participate in six months of mediation.135
Similar to the traditionalists, mediation in Egypt may bridle the new privilege of women where the method is implemented to reconcile (to salvage the marriage) rather than to resolve the dispute amicably (to allow the divorce).136 The requirement to mediate has even led women to return to their husbands after filing.137 Nevertheless, mediation has become an empowering step toward greater equality in the divorce context. In support of this idea, the number of women filing for divorce has increased dramatically: three hundred in the first six weeks after the law was enacted.138 From grandmothers married for forty years to young women married under one year, women in Egypt have begun their quest for independence.139 Lebanon has even begun to study the Egyptian statute as a conceivable model for its own progressive legislation.140 Its doing so suggests that mediation may continue to grant enhanced divorce rights to women in the Middle East.141
In Egypt and perhaps commencing in other Middle Eastern countries, mediation is included as a starting point in both the law and discussion. Although the courts employ the method to promote reconciliation, women's chances to begin anew has fewer impediments than under the old law. Mediation has given women a voice that they once did not have(142) and may serve as a step to greater rights in the legal process.
E. Administrative Necessities
In the last decade in the United States, close to half of all civil proceedings initiated in state courts are filed for the dissolution of marriage.143 In England, the Lord Chancellor's Department contends that in 1993, "the legal aid costs of divorce and family breakdown [ran] at around L180 million."144 In a study of upper-middle-class professionals in 1994, the average cost for divorce litigation in the United States was $12,234.145 Presently, the price of the average divorce in the United States has increased and may cost upwards of $20,000. Mediation remains a cheaper alternative to litigation, costing $3,500 to $10,000 per couple.147 Due to the pecuniary costs, it is clear that a significant motivation broadening the visibility of mediation is to "increase the [economic] efficiency of the legal system."148 The incentive to save costs and time is not unique to the United States. All jurisdictions desire a more efficient process. Nations have begun to use alternative dispute resolution processes to reduce clogged dockets and limit monetary expenses.149 Specifically, Australia has initiated mediation and conciliatory programs to reduce the transaction costs involved with initiating a divorce.
In Australia, the majority of disputes are settled outside the realm of the adversarial process, utilizing alternative dispute resolution processes.150 It has been said that Australia is experiencing an extensive increase in the use of alternative dispute resolution mechanisms.151 In 1995, the Australian Law Reform Commission (ARC), an independent corporation charged with generating reform proposals, was asked by the Attorney General to study the use of alternative dispute resolution programs.152 The ARC concluded that these programs should be utilized with greater frequency to unclog court dockets, decrease litigation costs, and improve the public's opinion of the Australian legal system.153
With regard to family law, the ARC determined that nearly all petitioners use alternative dispute resolution processes. Such processes, known as primary dispute resolution programs in that they are the principal methods for resolving familial disputes, are "the first, and often the last, intervention process they encounter with the Family Court."154 Australia has implemented several alternative dispute resolution programs to deal with family matters,155 and of the resolution processes, mediation is employed most extensively.156 The method is "facilitative rather than evaluative" and "usually involves a gender balanced team consisting of a lawyer and a counsellor."157 Furthermore, in an attempt to reduce the number of cases, which need to be assessed by a judge, divorce disputes solely concerning property division are handled through the conciliation process.158
It is clear that with the creation of the Family Law Reform Act of 1975(159) and the introduction of no-fault divorce, the legislature nevertheless considered the sanctity of marriage.160 The Act obligates courts to continue to "preserve and protect the institution of marriage . . . the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society."161 The Act also demonstrates a desire to ensure the protection of the children of the marriage: Children may be represented independently from their parents, and the mediator must consider the children's welfare when making a ruling.162 Notwithstanding other motivations, the transition in the use of mediation as the principle method for solving disputes in Australia, provides an example of a jurisdiction's attempt to better its judicial process.
Australia is also looking to advertise alternative dispute resolution.163 A pilot program titled Integrated Client Services has several aspects that favor mediation, including a central information desk where client inquiries may be addressed and information sessions where clients may learn about the different programs available.164 Furthermore, the pilot scheme offers "a multi-disciplinary team of service providers" who assess which program would be most effective in meeting a particular client's needs.165 "The scheme identifies at an early stage those disputes most likely to proceed to litigation and streams such disputes to a litigation track."166 In early assessment, the team is able to limit the number of cases headed to the courts and relieve some of the backlog.167 However, the lack of statutory authority requiring attorneys to inform clients about mediation may hinder the likelihood that large steps will be made to reduce the cost and time involved with divorce proceedings.168
Australia enjoys an integrated and well-utilized dispute resolution service. In attempting to reduce the backlogged dockets and expense of divorce, the courts have instituted a notable program to examine each case as it arrives to determine its appropriate dispute resolution method. An early determination of the suitable process will also facilitate finding the proper solution for the parties involved. Legislation encouraging the use of mediation to improve the efficiency of the legal system should serve as a common motivation for all jurisdictions since the cost of divorce is already quite expensive and continues to increase.
This paper has explored the approach of several nations and their philosophy regarding the implementation of mediation in their legal systems. China and Japan incorporated mediation into their conception of justice long ago. Mediation will continue as the primary means to solve disputes due to its lengthy tradition and the culture of both nations. Following the increase in divorce figures after the enactment of no-fault divorce laws. England desired to implement new legislation to make it more difficult to divorce. Ireland observed the number of divorces increasing in other countries and thus enacted divorce laws fairly recently, looking to limit divorces from the outset by encouraging mediation. Providing a voice for certain interested parties has also proven to be the philosophy of particular legislatures. Many U.S. states have begun to mandate or encourage mediation, specifically when custody or support issues are involved. Equality was also the motivation for the enactment of the amendments to the personal status laws in Egypt, resulting in greater rights for women. Finally, the Australian legislature addressed the inefficiency in its legal system by enacting a comprehensive alternative dispute resolution program.
Legislatures across the globe have begun to use mediation to spur distinct and intended action. Whether it is employed for child advocacy or a more efficient legal system, the incentives for mediation legislation vary significantly. The differences may be attributable to cultural heritage, the peculiarities of a particular legal system, other factors, or a combination of the above. For mediation advocates, the motivation that prompts the legislation may be insignificant. However, if the philosophy fails to incorporate the will of the parties, the benefits of the method cannot be realized. In the end, each motivation has significant advantages, and its cross-cultural use will aid in establishing mediation as a permanent dispute resolution method.
1. Dana Shaw, Mediation Certification: An Analysis of the Aspects of Mediator Certification and an Outlook on the Trend of Formulating Qualifications for Mediators, 29 U. TOL. L. REV. 327, 329 (1998).
2. DIVORCE MEDIATION 4 (Jay Folberg & Ann Milne eds., 1988) [hereinafter DIVORCE MEDIATION] (stating that mediation served as the "principal means of dispute resolution in Ancient China" and was referenced in the New Testament "when Paul encouraged the Corinthians to appoint people from their own community to solve disputes, rather than take disputes to court"); Shaw, supra note 1, at 329-31 (arguing that evidence for the use of mediation in Biblical times can be found in the gospel of Matthew).
3. Shaw, supra note 1, at 330. Several Native American tribes would resolve controversy by having parties come together to tell their side of the story without interruption. Jewish and Chinese immigrants also utilized mediation in their respective communities. Id. DIVORCE MEDIATION, supra note 2, at 4. In marital disputes, Quakers employed mediation and arbitration. Id.
4. See DIVORCE MEDIATION, supra note 2, at 4 (finding that "conciliation services have been used in Japan since prior to World War I"); Shaw, supra note 1, at 330.
5. Shaw, supra note 1, at 330.
6. See CONNIE J.A. BECK & BRUCE D. SALES, FAMILY MEDIATION, FACTS, MYTHS, AND FUTURE PROSPECTS 5 (2001) (contending that mediation gained attention with the emergence of no-fault divorce laws); DIVORCE MEDIATION, supra note 2, at 4 (arguing that the increase and acceptance of divorce has led to sweeping changes in the substantive law of divorce, the most significant being the adoption of no-fault provision for divorce); Human Rights in China, Caught Between Tradition and the State: Violations of the Human Rights of Chinese Women, 17 WOMEN'S RTS. L. REP. 285, 293 (1996) [hereinafter Caught Between Tradition and the State]. With the enactment of the Marriage Law of 1980, a divorce could be obtained if both parties attested to a "breakdown of affection." Id. See also Frances Gibb, Irvine Drops No-fault "Quickie" Divorces, TIMES (London), Jan. 17, 2001, at A3. England instituted a no-fault divorce procedure in 1969. Id.
7.The Family Law Reform Act, 1975 (Austl.); The Family Law Act, 1969 (Eng.); DIVORCE MEDIATION, supra note 2, at 4-5; BECK & SALES, supra note 6, at 5.
8. BECK & SALES, supra note 6, at 6.
9. See Hon. Dorothy W. Nelson, ADR in the New Era, 19 ALTERNATIVES TO HIGH COST LITIG. 65, 66 (2001).
11. BECK & SALES, supra note 6, at 7; Martha J. Bailey, Mediation of Divorce in China, 8 CAN. J.L. & SOC'Y 45 (1993); Judicial Separation and Family Law Reform Act (1989) (Ir.).
12. See BECK & SALES, supra note 6, at 7.
15. See supra notes 3-5 and accompanying text.
16. See, e.g., Bailey, supra note 11, at 45.
17. Shaw, supra note 1, at 330. See also Bailey, supra note 11, at 45 (stating that China's long history has led to an "institutionalized" practice).
18. Bailey, supra note 11, at 48.
20. Vai Io Lo, Resolution of Civil Disputes in China, 18 UCLA PAC. BASIN L.J. 117, 122 (2001).
21. Bailey, supra note 11, at 49, 53.
22. Lo, supra note 20, at 122.
23. See Bailey, supra note 11, at 52.
24. Id. at 56.
25. Bailey, supra note 11, at 53 (citing Marriage Law of 1950, ch. 5, art. 17 (P.R.C.)).
26. Janice A. Lee, Family Law of the Two Chinas: A Comparative Look at the Rights of Married Women in the People's Republic of China and the Republic of China, 5 CARDOZO J. INT'L & COMP. L. 217, 236 (1997); Bailey, supra note 11, at 53; see also Lo, supra note 20, at 122.
27. Marriage Law of 1950, arts. 23-25.
28. Bailey, supra note 11, at 56.
29. Id.; Lee, supra note 26, at 238.
30. Bailey, supra note 11, at 58; Lee, supra note 26, at 238 (citing Marriage Law of 1980 (P.R.C.)).
31. Bailey, supra note 11, at 58.
32. Id.; Lee, supra note 26, at 239.
33. Bailey, supra note 11, at 58; Lee, supra note 26, at 239.
34. Bailey, supra note 11, at 59.
35. Id. at 58-59.
36. Id. at 45 (arguing that as evidence, "Westerners have traveled to China to learn . . . mediation techniques, to such an extent that the Er Long Mediation Committee in Beijing had a video made in various languages to accommodate its visitors").
37. See Taimie L. Bryant, Family Models, Family Dispute and Family Law in Japan, 14 UCLA PAC. BASIN L.J. 1, 1-2 (1995); J. Dale Munro, Using Unconditionally Constructive Mediation to Resolve Family-System Disputes Related to Persons with Disabilities, 78 FAM. IN SOC'Y 609 (1997).
38. Bryant, supra note 37, at 2.
39. Troubleshooter, the YOMIURI SHIMBUN, Jan. 13, 2001, available at 2001 WL 3965335.
40. See Bryant, supra note 37, at 5-8.
41. Stanley R. Boots, The Personal Contacts Alternative-A Comparison of Japanese and Russian Cultures in the Russian Far East Timber Trade, 9 INT'L LEGAL PERSP. 257, 281 (1997) (quoting GEORGE DEVOS, DIMENSIONS OF THE SELF IN JAPANESE CULTURE, CULTURE AND SELF: ASIAN AND WESTERN PERSPECTIVES 164 (Anthony Marsella et al. eds., 1985)).
42. Boots, supra note 41, at 281-82.
43. Id. at 282.
44. See, e.g., Boots, supra note 41, at 281; Bailey, supra note 17, at 59.
45. See, e.g., Bailey, supra note 11, at 45; Caught Between Tradition and the State, supra note 6, at 293.
46. Caught Between Tradition and the State, supra note 6, at 293.
47. Margaret F. Brinig & F.H. Buckley, No-Fault Laws and At-Fault People, 18 INT'L REV. L. & ECON. 325, 325 (1998); see, e.g., The Family Law Act, 1996, [sec] 8 (Eng.).
48. Brinig & Buckley, supra note 47, at 325; see also The Family Law Act, 1996, [sec] 8 (Eng.); Marriage Law of 1980 (P.R.C.); Judicial Separation and Family Law Reform Act, 1989 (Ir.).
49. Laura A. Marshall, What God Has United Man Will Now Divide: Divorce Referendum Changes Law of 60 Years, 26 GA. J. INT'L & COMP. L. 505, 505 (1997).
50. Art. 41.1, Constitution of Ireland, 1937.
51. Marshall, supra note 49, at 505.
52. Family Law (Divorce) Act, No. 33, 1996, [sec][sec] 6-8 (Ir.).
53. Marshall, supra note 49, at 509-10.
54. Id. at 510-11.
55. See id. at 511.
56. Judicial Separation and Family Law Reform Act, No. 6, 1989 (Ir.).
58. Id. [sec] 6.
59. Family Law (Divorce) Act, No. 33, 1996, [sec][sec] 6-8 (Ir.).
60. See id. [sec][sec] 5-8.
61. Id [sec] 5.
62. See Marshall, supra note 49, at 519 ("Perhaps to allay fears that people will begin to divorce as often as American and British couples, husband and wife must prove that they have been separated at least four of the last five years and prove to a judge that there is no possibility of reconciliation.").
63. See notes 50-55 and accompanying text.
64. LORD CHANCELLOR'S DEP'T, LOOKING TO THE FUTURE-MEDIATION AND THE GROUND FOR DIVORCE [sec] 1.3 (1993) [hereinafter LOOKING TO THE FUTURE].
65. The Office for National Statistics reports divorces doubled in the 1960s from 27,000 in 1961 to 55,000 in 1969, and then doubled again by 1972 to almost 125,000. Office for National Statistics, Staying Together: Downward Trend Continues in 2000, National Statistics Online (Aug. 22, 2002), at http://www.statistics.gov.uk/cci/nugget.asp?id=170 (last visited Nov. 1, 2002).
66. LOOKING TO THE FUTURE, supra note 65, [sec][sec] 1.6-1.7.
67. Gibb, supra note 6.
69. The Family Law Act, 1996 (Eng.).
70. See id. [sec] 6.
71. See Carol Sarler, Let's Hear it for Divorce, OBSERVER, Jan. 21, 2000, available at 2001 WL 7275390. The implementation of mandated mediation was an attempt to appease the Right. Gibb, supra note 6.
72. Fergus W. Ryan, Law at the Margins: The Displacement of Law as a Framework of Governance, 19 DICK. J. INT'L L. 407, 425 (2001); Scotland Strengthens Confidentiality of Family Mediation Sessions, 7 WORLD ARB. & MEDIATION REP. 83, 84 (1996) [hereinafter Scotland Strengthens Confidentiality]; Gibb, supra note 6.
73. Ryan, supra note 72, at 425 (quoting The Family Law Act, 1996, [sec] 6 (Eng.)).
74. The Family Law Act, 1996, [sec] 8 (Eng.).
75. Scotland Strengthens Confidentiality, supra note 72, at 83; Gibb, supra note 6, at 3.
76. Scotland Strengthens Confidentiality, supra note 72, at 84;see also Lord Chancellor's Dep't, Divorce Law Reform-Government Proposes to Repeal Part II of the Family Law Act, 1996, available at http://www.lcd.gov.uk/family/famfr.htm (last visited Mar. 21, 2003) [hereinafter Divorce Law Reform].
77. Ryan, supra note 72, at 425 (quoting MICHAEL FREEMAN, THE FAMILY LAW ACT, 1996, and arguing that the Act's "moral agenda . . . is barely concealed").
79. LOOKING TO THE FUTURE, supra note 65, [sec] 1.3.
81. Id. [sec] 3.1.
82. Divorce Law Reform, supra note 76.
84. Gibb, supra note 6, at 3; see also, Sarler, supra note 71.
85. Gibb, supra note 6, at 3.
86. The Lord Chancellor's Dep't, Sorting Things Out Together, How Family Mediation Can Help You, available at http://www.lcd.gov.uk/family/fammed.htm. (last visited Mar. 21, 2003) [hereinafter Sorting Things Out Together]. The Lord Chancellor's Department operates a web page directed at answering questions concerning mediation. The Lord Chancellor's Dep't, The Government Supports Publicity Campaign to Increase Awareness of Family Mediation, available at http://www.lcd.gov.uk/family/famfr.htm (last visited Mar. 21, 2003) [hereinafter The Government Supports Publicity Campaign].
87. The Government Supports Publicity Campaign, supra note 86.
89. Kathryn E. Maxwell, Preventative Lawyering Strategies to Mitigate the Detrimental Effects of Clients' Divorces on Their Children, 67 REV. JUR. U.P.R. 137, 138 (1998).
90. See Eric R. Galton, Mediating With Children: Two Lawyers' Views, DISP. RESOL. MAG., Fall 1996, at 5.
91. Committee of Ministers to Member States on Family Mediation, Family Mediation in Europe: Recommendation No. R (98)1, 37 FAM. & CONCILIATION CTS. REV. 257, 257 (1999).
92. Marta Raquena, Activities of the Council of Europe in the Field of Family Law, 31 CAL. W. INT'L L.J. 53, 58 (2000).
93. See, e.g., CAL. FAM. CODE [sec][sec] 3171, 3173 (West 1994); CONN. GEN. STAT. ANN. [sec][sec] 46b-53a (West 1999); DEL. FAM. CT. R. [sec][sec] 16(a), (b)(1) (1994); FLA. STAT. ANN. [sec] 44.102(2)(c) (West 1999); IDAHO R. CIV. P. 16(j)(5) (West 2003); ME. REV. STAT. ANN. tit. 19-A [sec] 251.2 (West 1998); NEV. REV. STAT. [sec] 25 (1998); N.C. GEN. STAT. [sec] 50-13.1 (1995); R.I. GEN. LAWS [sec] 15-5-29(a) (1998); S.D. CODIFIED LAWS [sec] 25-4-56 (Michie 1999).
94. See Nancy Hardin Rogers, Mediation and Conciliation, in BALDWIN'S OHIO PRACTICE, DOMESTIC RELATIONS [sec] 6.2 (Beatrice K. Sowald & Stanley Morganstern eds., 1997).
95. 4 AM. JUR. 2D, Alternative Dispute Resolution [sec] 50 (1995) [hereinafter Alternative Dispute Resolution].
96. See Gallon, supra note 90, at 5.
97. Abigail Leichman, Anti-war Movement Divorce Mediation is Gaining Favor as the Alternative to an Adversarial Contest, RECORD (Northern New Jersey), Jan. 4, 2001, available at 2001 WL 5232341.
98. Alternative Dispute Resolution, supra note 95, [sec] 50.
99. See Carrie-Anne Tondo et al., A Survey of the States, 39 FAM. CT. REV. 431, 444 (2001).
100. Id. at 431.
101. See W. VA. CODE [sec] 48-9-101 (2001).
103. Id; see also Tondo, supra note 99, at 444.
104. Tondo, supra note 99, at 437.
105. Alternative Dispute Resolution, supra note 95, [sec] 50; Tondo, supra note 99, at 434.
106. Alternative Dispute Resolution, supra note 95, [sec] 50.
108. Tondo, supra note 99, at 436 (citing IDAHO R. CIV. P. 16(j)(5) (West 2003)).
110. Id. at 434-45.
112. See Committee of Ministers to Member States on Family Mediation, supra note 91, at 258.
113. Andrew Schepard, The Evolving Judicial Role in Child Custody Disputes: From Fault Finder to Conflict Manager to Differential Case Management, 22 U. ARK. LITTLE ROCK L. REV. 395, 411 (2000).
114. Maxwell, supra note 89, at 149 (citation omitted).
116. Jessica Pearson, Mediating with Children: Empirical Research, DISP. RESOL. MAG., Fall 1996, at 17.
117. Id. at 17.
118. See JEFFREY DUNOFF ET AL., INTERNATIONAL LAW: NORMS, ACTORS, PROCESS 192-206 (2002) (reporting increased NGO activity at the 1994 United Nations International Conference on Population and Development at Cairo); see, e.g., Shefali Desai, Hearing Afghan Women's Voices: Feminist Theory's Re-Conceptualization of Women's Human Rights, 16 ARIZ. J. INT'L & COMP. L. 805, 830 (1999) (arguing that the Taliban had been compelled to "follow internationally set standards of women's rights").
119. Howard Schneider, Women in Egypt Gain Broader Divorce Rights, WASH. POST, Apr. 14, 2000, at A16; see also Barbara Stowasser, Old Shaykhs, Young Women, and the Internet: The Rewriting of Women's Political Rights in Islam, MUSLIM WORLD, Apr. 1, 2001, available at 2000 WL 25136159; Asghar Ali Engineer, The Hindu Editorial: Hopes for Change, THE HINDU, Oct. 31, 2000, available at 2000 WL 27347058.
120. See Schneider, supra note 119.
121. See Ali Engineer, supra note 119.
122. See Schneider, supra note 119.
123. See Ten First Ladies Seek Gains For Arab Women, DALLAS MORNING NEWS, Nov. 19, 2000, at A27.
124. Schneider, supra note 119.
125. Law No. 1925 (1929), as amended by Law No. 1 (2000) (Egypt).
126. See Carolyn Fluehr-Lobban, Comment, Changing Family Law in Egypt, PROVIDENCE J., Dec. 17, 2000, at E17, available at 2000 WL 28393780.
127. Myranda Mowafi, Islamic History Is Made as Woman Files for Divorce, DAILY TELEGRAPH (London), Mar. 15, 2000, available at 2000 WL 15925034 [hereinafter Mowafi, History is Made].
128. See Bassem Mroue, Wives Gain with Egyptian Divorce Law, Social Issues: Men May Marry and Divorce Without Court Approval, but Women Had Faced an Uphill Battle, ORANGE COUNTY REG., Mar. 5, 2000, at A42, available at 2000 WL 4820053.
129. Fluehr-Lobban, supra note 126.
130. Schneider, supra note 119; Fluehr-Lobban, supra note 126.
131. Fluehr-Lobban, supra note 126; Egypt: New Divorce Law Implemented, N.Y. INT'L TIMES, Mar. 6, 2000, at A1; Ali Engineer, supra note 119.
132. Schneider, supra note 119.
133. Fluehr-Lobban, supra note 126.
134. Schneider, supra note 119; Fluehr-Lobban, supra note 126.
135. Egypt: Divorce Law Changed, OFF OUR BACKS, Mar. 2000, available at 2000 WL 15948664.
137. Myranda Mowafi, 'No Beating' Vow Heals Marriage Rift, DAILY TELEGRAPH (London), Apr. 19, 2000, available at 2000 WL 18304030 (reporting that after attending mandated mediation, Wafa Gabr was the first woman to file for divorce under the new amendment but has decided to remain in the marriage after her husband has indicated he would treat her better).
138. Mowafi, History is Made, supra note 127; Schneider, supra note 119.
139. Mowafi, History is Made, supra note 127.
140. Schneider, supra note 119.
141. See id.
142. See id. Under the old law, divorces were granted if mistreatment could be proven but still took several years to obtain. The likelihood of ending the marriage is much better under the new law without the need to show cause. Id.
143. Tom R. Tyler, Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform, 45 AM. J. COMP. L. 871, 878 (1997).
144. LOOKING TO THE FUTURE, supra note 64, at 1.
145. BECK & SALES, supra note 6, at 99.
146. Kevin McDonald, The Cost of a Divorce, at http://www.bankrate.com/brm/news/advice/19990903a.asp (last visited Mar. 21, 2003).
147. Ann L. Begler, A Referral to Divorce Mediation: How Mediation Can Help Lawyers Deal with Divorce, LAW. J., Aug. 24, 2001, at 18.
148. BECK & SALES, supra note 6, at 99.
149. See Gerald Walpin, America's Failing Civil Justice System: Can We Learn From Other Countries?, 41 N.Y.L. SCH. L. REV. 647, 662 (1997).
150. Lucille M. Ponte, Reassessing the Australian Adversarial System: An Overview of Issues in Court Reform and Federal ADR Practice in the Land Down Under, 27 SYRACUSE J. INT'L L. & COM. 335, 336 (2000).
151. Walpin, supra note 149, at 662.
152. Ponte, supra note 150, at 336-37.
153. Id. at 336; The Australian Law Reform Commission, Review of the Adversarial System of Litigation: The Inquiry, [para][para] 1.1-1.2, available at http://www.austlii.edu.au/au/other/alrc/publications/issues/25/ch3.html (last visited Mar. 21, 2003) [hereinafter The Inquiry].
154. The Australian Law Reform Commission, Review of the Adversarial System of Litigation: ADR in Federal Litigation, [para] 3.49, available at http://www.austlii.edu.au/au/other/alrc/publications/issues/25/ch3.html (last visited Mar. 21, 2003) [hereinafter Review of Adversarial System of Litigation]; Ponte, supra note 150, at 350.
155. Ponte, supra note 150, at 350; Review of Adversarial System of Litigation, supra note 154, [para][para] 3.50-3.56.
156. Ponte, supra note 150, at 350.
157. Review of Adversarial System of Litigation, supra note 154, [para] 3.52.
158. Ponte, supra note 150, at 350.
159. Family Law Act, 1975 (Austl.).
160. The Hon. Chief Justice Alastair Nicholson & Margaret Harrison, Family Law and the Family Court of Australia: Experiences of the First 25 Years, 24 MELB. U. L. REV. 756, 757 (2000).
161. Nicholson & Harrison, supra note 160, at 757 (quoting The Family Law Reform Act, 1975, [sec] 43 (Austl.)).
164. Id.; Review of Adversarial System of Litigation, supra note 154, [para] 3.58.
165. Review of Adversarial System of Litigation, supra note 154, [para] 3.58.
167. See id.
168. See id.
Anne K. Subourne*
* Anne K. Subourne is a 2003 J.D. candidate at The University of Texas School of Law. The author would like to thank her husband Brian for his support and her parents for their guidance and encouragement.…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Motivations for Mediation: An Examination of the Philosophies Governing Divorce Mediation in the International Context. Contributors: Sobourne, Anne K. - Author. Journal title: Texas International Law Journal. Volume: 38. Issue: 2 Publication date: Spring 2003. Page number: 381. © University of Texas, Austin, School of Law Publications, Inc. Summer 2008. Provided by ProQuest LLC. All Rights Reserved.