Divorce Mediation: Negotiating Agreements and Renegotiating Relationships
Emery, Robert E., Family Relations
Mediation techniques have ancient roots, but divorce mediation first emerged as a distinct practice only in the 1970s (Folberg & Taylor, 1984). The first law about divorce mediation in the United States was implemented in 1981. At that time, California legislation mandated that all parents with contested child custody or visitation disputes must attempt mediation before a custody hearing would be held. Since the enactment of the California law, the states of Arizona, Delaware, Florida, Kentucky, Maine, Nevada, North Carolina, Oregon, Utah, and Wisconsin all have adopted legislation mandating the mediation of custody disputes in at least some of their jurisdictions (Hendricks, 1993-94).
No law can mandate a resolution of disputes in mediation, because such a ruling would violate due process rights. Thus, "mandatory mediation" really is a mandatory attempt at mediation. In practice, this usually means that parents must attend at least one meeting with a mediator. In circumstances where one partner feels threatened by the other, each partner may meet with the mediator separately.
Discretionary divorce mediation programs, where parents may be ordered to attempt mediation based on a judge's individualized rulings, have been implemented by law and/or local court rulings in numerous states in addition to those with mandatory mediation programs. Voluntary mediation is even more widespread, as the service has been made available and encouraged for parents who are willing to try this alternative (Hendricks, 1993-94). Hundreds of voluntary mediation programs have been mounted privately, or in courts, social service agencies, or community mediation centers.
Twenty-five years ago, the concept of divorce mediation did not exist. Today, mediation has created major alterations in judicial practice, and it continues to be at the forefront of change in family law. This article briefly describes the nature of mediation, reviews some reasons for its rapid development, summarizes research evidence comparing the outcomes of mediation and litigation, and highlights some controversies about mediation (see also Emery, 1994).
DEFINING DIVORCE MEDIATION
In divorce mediation, divorcing or divorced parents meet together with an impartial third party who helps them to identify, discuss, and hopefully resolve disputes that result from divorce. There are numerous psychological, interpersonal, and practical areas of conflict in divorce, but mediators typically limit negotiations to the five major issues addressed in the law. Finances comprise three important legal matters, specifically property division, spousal support, and child support. The remaining two issues are traditionally known as matters of custody and visitation. The terms custody and visitation carry many negative connotations, particularly to noncustodial parents who object to the idea of "visiting" their children. At the same time, the terms carry few clear legal denotations. Thus, the legal terms have been replaced with new, more palatable phrases (e.g., parental responsibilities) in some jurisdictions and with more specific designations (e.g., parenting plans) in others. Whatever the terminology, the two central childrearing disputes in divorce are: (a) where the children will reside according to what schedule and b) how parents will share and/or divide both day-to-day decisions and broader authority over childrearing (e.g., religious training).
The most frequently practiced form of divorce mediation focuses only on childrearing disputes and sometimes is called custody mediation (Myers, Gallas, Hanson, & Keilitz, 1988). Comprehensive divorce mediation is a less common form of practice that includes the negotiation of financial as well as childrearing disputes. Custody mediation is the primary focus of the present article because the rationales for mediating custody disputes are most compelling.
REASONS FOR THE RAPID DEVELOPMENT OF DIVORCE MEDIATION
There are a number of reasons why divorce mediation has grown so rapidly in approximately two decades of existence. …