Mediation is the process where a neutral third party assists disputing parties in a confidential, nonhostile way to reach an agreement that is satisfactory to both parties. Ideally, it also empowers the parties with a model that can be used to resolve further disputes. Mediation can be used for any dispute, but is probably most often used for divorce, custody and visitation, child support, property settlement, and restorative justice.
Although all forms of alternate dispute resolution use a neutral third party, mediation differs from conciliation because reconciling the parties is not a goal, and it differs from arbitration because the arbitrator makes a decision usually based on legal principles after hearing the evidence, with resolution the goal and not achieving a satisfactory solution. Mediators often do not know the laws, since satisfaction is a primary goal. All three methods have the potential to resolve conflicts with less bitterness and expense than litigating the dispute.
Does Mediation Work?
Over 90% of cases resolve regardless of whether courts use any type of alternative dispute resolution. Short-term gains from mediation’s success over litigation vanish within 2 years, with both groups returning to court equally often with further disputes. The cost savings are far less or nonexistent than litigating a case, particularly when the parties pay the mediation costs.
Judges prefer mediation since it resolves many cases without their involvement. Most mediators find their work highly gratifying. Where it works, parties are often pleased to resolve disputes quickly, amicably, and with less cost.
Men like mediation far more than women do, and victims of domestic violence are less likely to be satisfied or save money than nonabused parties, although studies have failed to find physical abuse increases more after mediation than litigation. Many states and courts permit domestic violence victims to opt out of mediation, and many require mediators to screen out cases where there is domestic violence or to do it in ways to protect the victim, for example, where the parties do not meet together (often called shuttle mediation as the mediator shuttles between the parties) or even mediate over the telephone or through videoconferencing.
Problems With Mediation
Mediation is often conducted before discovery is completed so that the parties may not know the true value of an estate being divided or how to determine child support fairly, particularly if mediation includes alimony and property division.
Court mediators often make recommendations to the court about unsettled cases. This practice breaches the confidentiality promised and may result in unfairness, especially for the 85% to 90% of people who are unrepresented in family court in the United States.
In many states it is harder to modify an agreement of the parties than a court-ordered decision. Courts might honor a statement in the agreement that the parties intend their agreement to be modifiable upon the same standard as a court-ordered decision, although this is a two-edged sword and might encourage abusers to return to court.
How Mediation Disadvantages Abuse Victims
Mediators May Minimize Abuse
Few mediators understand domestic violence and most minimize its seriousness. Most are mental health professionals who believe all dynamics within the family are the result of both parties’ behavior, so they fail to see abuse as a crime, blaming both parties. Many assume abuse ends once the parties have resolved their dispute or as a result of learning the new skills imparted on them through mediation. Although domestic violence is involved in 50% to 80% of divorce cases, mediators required to screen out domestic violence cases do so in about 5% of the cases, believing they are competent to handle the rest fairly. Victims may not feel believed and may feel unsupported when the abuse is not validated.
Mediators assume that increasing communication is better for the parties and the children. However, this increase may permit the batterer to use the communication to verbally intimidate, demean, disparage, or abuse the victim or to pressure reconciliation.
Mediators also often have a strong shared or joint custody bias and often need to impose shared parenting to reach seemingly fair agreements since custody generally outweighs all other aspects of the marital estate to be divided, particularly when mediation excludes property division. Batterers typically get more custody and less supervised visitation when cases are mediated, increasing the danger for children and abused parents.
Batterers May Not Mediate Fairly
Many batterers have no intention of mediating fairly. They may push to optimize their situation and often to punish their victims. Being charming and more powerful, they often manipulate the mediator and turn their desires into a likely end product, making their victim seem unreasonable for rejecting them.
Even if batterers get all of their demands, they may have no intention of abiding by the agreement. When the agreement breaks down and returns to court, usually as a contempt or modification, the court often sends the case back to mediation, and the mediator, using the failed agreement as a starting point, negotiates a new agreement, often more favorable to the abuser than the prior one. This ratchet wheel effect continues with each successive breakdown, with courts and mediators oblivious to the pattern or realizing they colluded in increasing the power differential, unfairness, and danger.
Further disadvantaging victims, mediation often assumes equal bargaining power and ability to articulate one’s needs and desires. Some victims are so overwhelmed or afraid that they cannot step back to think what they need, or even if they know, dare to articulate it or why they or the children need these protections.
Mediation Impedes Healing
Because mediation focuses on forgetting the past and looking to the future and blames both parties for past behaviors, it silences victims and reinforces the abusers’ messages that their partners are to blame. Failing to hold the abuser accountable for the abuse, mediation may reinforce to the whole family, including the children, that abuse is acceptable, works, and will be rewarded. The result is that mediation impedes the ability of everyone in the family from healing and moving beyond.
Possible Challenges To Mediation
Victims not permitted to opt out of mediation can object using one or more of the following four strategies: (1) They can go to mediation, get a written agreement that nothing further will be reported to the court about what happened in mediation, and then state they have nothing further to say, that the mediation failed, and walk out. If what happened is reported to the court, they should demand that the judge withdraw from the case and report the mediator for malpractice. (2) If the court sends them more than once to mediation on the same issue(s), they should object that they are being denied their constitutional right to access to court. (3) If they have a lawyer and their lawyer is not permitted to attend and advise them in the mediation process, they can object on the grounds that this denial violates their Sixth Amendment rights. (4) Someone objecting to mediation as violating their religious or philosophical beliefs can try arguing that it violates their First Amendment religious rights. They must be able to convince the court of their sincerity in objecting to mediation as a violation of their beliefs and that these beliefs are religious in nature. But it is irrelevant if others in their religion do not hold this view, only that they personally and sincerely hold it.
Bibliography:
- Bruch, C. S. (1988). And how are the children? The effects of ideology and mediation on child custody law and children’s well-being in the United States. International Journal of Law and the Family, 2, 106–126.
- Bryan, P. E. (1992). Killing us softly: Divorce mediation and the politics of power. Buffalo Law Review, 40(2), 441–523.
- Grillo, T. (1991). The mediation alternative: Process dangers for women. Yale Law Journal, 100, 1545–1610.
- Murphy, J. C., & Runinson, R. (2005). Domestic violence and mediation: Responding to the challenges of crafting effective screens. Family Law Quarterly, 39(1), 53–85.
- Treuthart, M. P., & Woods, L. (1990). Mediation—A guide for advocates and attorneys representing battered women. New York: Legal Momentum.
- Zorza, J. (2004). What is wrong with mediation. Domestic Violence Report, 9(6), 81, 91–94.
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