Mediation - How Mediation Works

Mediation is defined as any strategy or approach to resolving conflict that arrives at a settlement agreeable to the parties. In divorce mediation, the spouses meet with an impartial third party to reach an agreement regarding child custody and other issues. Two forms of divorce mediation are generally recognized. Child custody mediation is specific to the issues of each parent's right to custody and visitation of their children. Comprehensive divorce mediation deals with other issues such as property distribution and spousal support. Some mediation programs involve an average of two or three sessions, whereas others may use as many as ten sessions.

Unlike adversarial methods of reaching divorce settlements, such as litigation or out-of-court negotiation between the spouses' lawyers, mediation occurs with one professional, assumes the parties will cooperate to reach an agreement rather than compete to get the most for themselves, and allows the spouses to make their own decisions. Although some forms of mediation may address underlying interpersonal or individual problems, mediation is unlike marriage therapy because it does not aim for reconciliation. The goal of mediation is for the couple to reach a fair settlement that allows the marriage to be dissolved.

As of 1994, five states (California, Maine, New Mexico, Oregon, and Wisconsin) required mediation as a mandatory first step in resolving child custody disputes, while seven states (Alaska, Colorado, Connecticut, Illinois, Iowa, Kansas, and Louisiana) provided for mediation as part of the state family courts on a discretionary basis, depending on the nature of the divorce disputes. As of 1999, some states still did not have statutes regarding mediation but allowed individual jurisdictions within those states to enact local rules, whereas in other states (Michigan and New Hampshire) mediation was voluntary, that is, the courts mentioned its availability to the parties involved.

In addition to court-based mediation, there is now a growing use of mediators in private practice. While court-based mediators often are social workers or other mental health professionals, private mediators tend to be attorneys, many of whom have also served as divorce attorneys. As divorce mediation becomes a "growth industry" for attorneys, questions have arisen about the appropriate role for lawyers and the potential ethical dilemma of dual representation. Researchers have raised questions about the appropriateness of mediation in cases of domestic violence or abuse. Mediation also may not be appropriate when other severe power imbalances exist between the two parties, such as in cases of alleged child abuse or neglect, mental health problems, or borderline intellectual functioning.