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Mediation

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.

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