Divorce Mediation

The evolution of mediation process, theory, and the mediator's role seeks to better meet the purported advantages of the mediation process over litigation. General benefits argued to be unavailable through litigation include: the opportunity for each disputant to (1) air their concerns and be heard; (2) be assisted by a neutral third party; (3) and do so in a nonadversarial context (Beck and Sales 2001). Increased efficiency is one specific advantage purported by mediation supporters (Twaite et al. 1998). Supporters of mediation generally see mediation as avoiding the adversarial context that has the potential to increase the length and cost of reaching a settlement. A second advantage is increased accessibility to assistance in the divorce process. As mediation tends to be cheaper than litigation, those disputants who cannot afford a lawyer can afford to engage in the mediation process. Third, it has been argued that litigated settlements tend to be based on legal precedents versus addressing the unique needs of each disputant (Twaite et al. 1998). Mediation seeks to hear, understand, and address the unique situations and needs of disputants; creating settlements that are more personally relevant. The increased privacy that comes from mediation versus litigation is also seen as more related to the interests of the disputants. A fourth specific benefit of mediation is its greater potential than litigation for self-empowerment. Disputants in mediation experience greater self-efficacy and control as they play a more active role in mediation and have the opportunity to air their concerns and be heard in ways not available through litigation (this benefit forms the central goal of an emerging mediation model [Bush and Folger 1994]).

Joan Kelly's (1996) seminal research review article examining divorce mediation research conducted between 1986 and 1996 found robust support for the positive effect mediation has on settlement rates. Settlement rates ranged from 50 to 85 percent across studies, countries, and mediation contexts. Beck and Sales (2001), in their review of research conducted since 1996, found similar settlement rates for those disputants going through mediation. Kelly (1996) also reported that most studies indicate higher compliance rates and less relitigation for disputants using mediation versus litigation. Beck and Sales (2001) support Kelly's report but point out long-term compliance is not clearly evident, primarily due to methodological issues of the studies conducted to date. Mediation has been found (Beck and Sales 2001; Kelly, 1996) to reduce conflict and cooperation between disputants in most studies though the effects are small and short-lived, which supports the common belief that the effects of divorce for disputants and their families last long into the future. Research on the appropriateness of mediation shows that the field is still lacking knowledge on the effect of personality styles on mediation outcome (Kelly 1996). Despite substantial support for divorce mediation disadvantages do exist.