Divorce mediation is the use of a third-party neutral mediator who assists parties in developing their own financial and parental agreements at the time of a divorce. The mediator, unlike a judge, has no authority to impose a decision on the parties. Mediation encourages the parties to communicate directly and fashion an agreement that suits their particular needs. Mediation is often used in situations where emotions run high and parties will continue to have a relationship after the resolution of the present conflict. In most divorce cases, both of these characteristics are present since most marriages ending in divorce involve children.
Although mediation is an ancient practice in many cultures, its widespread use in divorce cases in the United States is of relatively recent origin. California established court-connected conciliation services in 1939, the aim of which was to promote reconciliation in marriages. The focus later shifted to divorce counseling and child custody mediation. During the 1970s, attitudes toward divorce began to change in the United States. As a result, many states abandoned the system whereby a judge was called upon to decide whether one of the parties was guilty of a marital “fault” such as adultery, abandonment, or abuse. Instead most states moved to a system of “no-fault” divorce, allowing the spouses themselves to determine whether to continue the marriage. Issues related to property division began to resemble business partnership dissolution proceedings and became more predictable as well. It followed then that parties took the opportunity to privately order their divorce and began to look for ways to do so with the assistance of a nonjudicial third party.
In 1978, O. J. Coogler, an attorney and marriage counselor, established one of the first family mediation centers in Atlanta. In his book entitled Structured Mediation in Divorce Settlement, he outlined a process for resolving the issues attendant upon divorce using a facilitator. While mediation is often used to resolve issues relating to the economic aspects of divorce, its most common application is in the area of decision making regarding children. Psychological research in the 1970s and 1980s concluded that children would benefit after divorce from a continuing relationship with both parents. This research, in addition to other political and social trends, led to the enactment of joint or shared custody statutes in many states. These arrangements required more planning and cooperation on the part of parents. Mediation is seen as a process that allows parents to create agreements that best suit their families and at the same time help to build a relationship that will encourage ongoing cooperation. A majority of states now require mediation for child custody disputes before parents can ask for a court to make a decision about the care of their children.
Mediation of property issues related to divorce is usually conducted by a lawyer who acts as the mediator. The lawyer does not represent either of the parties in the divorce but rather assists them in creating a settlement agreement that is then reviewed by their own attorneys. Mediation of child custody disputes is generally performed by lawyers, mental health professionals, and employees of the court who are specially trained for this function. The courts are still involved in divorce cases because divorce agreements must be approved by the judge who will grant the divorce.
Divorce mediation is not without its critics. Some worry that without lawyers to negotiate on behalf of clients, a spouse might be taken advantage of in mediation. Proponents of the practice respond by noting that mediators are trained to identify and address such power imbalances and that most parties will have lawyers who, while not present at the mediation, will nevertheless review the agreement before it is finalized.
There are no standard requirements for becoming a mediator. Many programs and states set their own qualifications, which generally include some educational credentials as well as specialized training.
- Association for Conflict Resolution, http://www.acrnet.org
- Association of Family and Conciliation Courts, http://www.afccnet.org
- Coogler, O. J. (1978). Structured mediation in divorce settlement: A handbook for marital mediators. Lexington, MA: Lexington
- Folberg, , Milne, A., & Salem, P. (Eds.). (2004). Divorce and family mediation: Models, techniques, and applications. New York: Guilford.
- Moore, (2003). The mediation process (2nd ed.). San Francisco: Jossey-Bass.
- Taylor, A. (2002). The handbook of family dispute resolution: Mediation theory and practice. San Francisco: Jossey-Bass.