Mediation is a process which involves third party intervention and has been viewed as more constructive than other ADR approaches in that it contributes toward reaching more durable outcomes, generates greater mutual satisfaction and decreases the likelihood of negative or harmful outcomes such as escalation of conflict.1 The mediation process favours private ordering in that mediators are expected to facilitate the process by which the parties themselves determine the outcome and consequences of the divorce.2
Proponents of divorce mediation argue that mediated settlements are longer lasting and better protect the interests of the children than those imposed by the court in an adversarial process. Furthermore, divorce mediation is less costly and encourages communication between the parties. Although the benefits of mediation are most evident and beneficial outside of the court process, if a dispute did proceed to court, studies that suggest that mediation late in the litigation process is equally as effective as early in the process as clients have grown tired of the fight.3
In their study of client satisfaction in lawyer negotiated or mediated agreements, Ellis and Stuckless indicate that mediation clients are more satisfied with mediation than adversarial clients are with the processes of lawyer negotiation, court hearings and trials.4 They are heard, understood and participate in a process that provides for fairer outcome for families.5 Clients who participate in mediation shortly after separation and before they became involved with lawyers and the court process, report higher rates of agreement.6 Further, mediation clients reported that rates of “court conflict” were much lower during the 18 month period mediation period amongst those who reached agreement.7
The trend toward ADR stemmed in part from parental dissatisfaction with the adversarial approach to divorce. There are numerous studies that show that parents want to structure their own solutions that were beneficial to them and their children.8 For example, one study found that 50% to 70% of litigants experienced the legal system as being "impersonal, intimidating, and intrusive." Similar findings were reported in another study where 71% of parents said that use of the court process escalated conflict and distrust. Many parents concluded that the traditional adversarial process was more suited to assessing blame than encouraging problem solving. Parents began to realize that with appropriate help, they were better equipped than courts to devise parenting arrangements that would meet the needs of their restructured families.9 With early intervention, the families benefited from lower conflict, greater father involvement and better outcomes than those participating in an adversarial process. Families were more cooperative and less likely to need costly services.10
Various studies in the United States provided some important information regarding the impact of the mediation process on families and children.11 Generally, the parties who agreed to mediation were in a higher socio-economic status and were better educated. 12 The agreement rates were high i.e. nearly 80% of the cases that used mediation reported that they were successful at reaching agreement.13 Approximately 75% of couples were extremely satisfied with the mediation process in contrast to only 40% of respondents who indicated that they were satisfied with the court process. Another positive feature of mediation what the ability to express ones own point of view (70-90%) and that it helped them focus on the needs of the children (69%). Parties felt that they were able to identify real issues in dispute (63%) and felt less rushed than in the courtroom (72%).14 Over half of the participants (69%) felt that mediation was better than going to court. It is worth quoting one father who said
“The mediators brought up things, (visitation) options that I hadn’t even considered. We ended up compromising …. I got a chance to present everything that I wanted to present. It helped us understand each other.”15
Further, with respect to compliance with the agreement and re-litigation, 80% of spouses reported compliance, with only 60% of the adversarial parties.16
A far greater number of mediation participants (30%) felt that their relationship with the other party improved compared to only 15% of parties exposed to the courts. One half of the court participants felt that court was detrimental to their relationships.17 More recent and less entrenched disputes were more likely to be resolved in addition to those with parties who were best able to communicate.18 In terms of impact on children, it is not surprising that studies find that there is a clear pattern for better adjustment for children with parents who cooperate.19
Another study considered the long term effects of mediation, 12 years post separation. The long term benefits of mediation were significant as found in this study. The original study (1991) produced results that show that a far greater percentage of people who mediated settled (72% mediation to 25% adversary). It was found that the disputes were settled in mediation in about in about half the time compared to adversarial disputes and there was greater compliance than in the adversarial group.20The authors considered the return to mediation after the original mediation involvement a success, as it indicated that the parties still wished to use cooperative methods to resolve disputes that do naturally arise with changes in circumstances. In the twelve year follow up of this group, the researchers found that there was greater flexibility in dealing with any changes that arose with the group that mediated. They found that generally, parents who mediated were more satisfied twelve years later than were the adversarial group.21 The study found that the long term relationships between children and non-residential parents improved, together with the parents relationships themselves.22 The parents were able to discuss problems and resolve them with greater frequency and had more influence over childrearing decisions.23
One study differed from previous studies as it was not court connected and dealt with all issues including property and support and not just children.24 78% of men and 72% of women participants reported that they were somewhat to very satisfied with the mediation process.25 Women reported that the mediation process helped them assume more responsibility in managing their personal affairs and also helped them stand up for themselves to a greater degree. The data from this study did not support the proposition advanced by critics of mediation that women were disadvantage in outcomes in mediation or forced into agreement that were unfair.26 Both men and women were significantly more satisfied with both the process and various outcomes than were the adversarial men and women at the time of final divorce.27
In an extensive and comprehensive report prepared for the Department of Justice with respect to court related mediation projects in four Canadian cities, the authors undertook a review of the processes and outcomes of the projects and considered whether divorce mediation did actually meet the high expectations set by its proponents.28 The research supports the proposition of divorce mediation that promises more amicable settlements and shared or joint custodial arrangements. Further, the study showed that the amounts of support that were negotiated in mediation were higher than in non-mediated cases. As with other studies, these findings undermine that argument raised by some that women do worse in mediation from a financial perspective.29 There were more advantages rather than disadvantages with the joint custodial or shared parenting arrangements than there were disadvantages i.e. after living with it for a period of time 89% of men and 75% of women indicated that they would choose joint custody again.30 Further, parties were able to work out fair and reasonable access arrangements within a mediation process.31 Except for the Montreal location, the other sites did not deal with property in mediation. Parties in the other sites were not happy with the fact that they could not deal with all issues in mediation. However, it was found that there was greater lawyer resistance to the mediation of property disputes as it was felt it was far more complicated.32
The results of the study show that mediation produces outcomes that are better than those achieved through negotiation with a lawyer or from a court. The results are achieved without the negative consequences. Although the results aren’t as dramatic as those found in the American studies, the benefits still outweigh any negative effects. The agreement must meet basic legal requirements as they are negotiated “within the shadow of the law” as they will need to be sanctioned by lawyers or judges. Generally, the parties who have used the services were highly satisfied with the process and the results.33
Advocates of marital and divorce mediation hypothesize that children, whose parents mediated their disputes, fare better than those children whose parents participated in an adversarial process. It is argued that mediation makes a far greater contribution toward preventing parental conflict through improved communication and better understanding of the underlying causes of conflict. Mediation allows the parties to better deal with the conflicts that arise in a positive cooperative fashion after the completion of mediation and deal with their conflicts. Further, mediation facilitates co-parenting which is in the best interests of children as it provides for maximum time and input by both parents in the children’s lives.34
Ellis and Stuckless reviewed a number of studies dealing with the impact of mediation or court processes on children. One study found significant differences between parents who mediated and those who used the adversarial process. Mediation parents reported significantly fewer conflicts over custody, access and child support issues during the process itself and at the time of divorce. Further, one year after the divorce, there were significantly fewer conflicts over communication related conflicts involving the children. However, there was no measurable difference between the mediation and adversarial parents two years post separation. One explanation put forth by the authors is that mediation parents had lower levels of anger than did the adversarial ones.35 However, some studies indicate that the minimum amount of time necessary to notice an impact on children is five years. According to Ellis and Stuckless, it appears that the passage of time has more of an impact on adjustment of children than participation in mediation or the adversarial process.36
Ellis and Stuckless consider studies that outline the reasoning behind people’s choices of mediation over lawyer negotiation within the adversarial process. Both men and women identify the primary reason for choosing mediation as wanting to reach an agreement that was satisfactory to both. Secondly, they want to reduce hostility and next they want to reduce costs. Finally they want to reduce involvement with lawyers and court proceedings.37 Within their own study, Ellis and Stuckless considered the differences between preferences and aversions in ways of settling disputes in lawyer and mediation clients. They conclude that the choices made by mediation clients are more fully informed than those of lawyer clients and lawyers are doing a poor job of informing their clients about the mediation options open to them.They found that compared to the clients in the lawyer sample, a significantly higher proportion of mediation clients were participating in a process that they believed was the best way for them to settle issues associated with their separation (65.9% vs. 48.8%). With the lawyer clients, a significantly higher portion believed that they were participating in a process that was the worst way to settle the issues associated with their separation (28.1% vs. 1.2%).38
Most of the lawyer clients were not informed of the mediation option and, as such, few of them had the opportunity to make informed decisions regarding their options. When asked why he had chosen a lawyer to process his separation, a male client replied, “What the hell else is there?” A female lawyer client provided the following answer to the same question, “There is no other way.” Of the female client sample, only 28.1% of clients reported that their lawyers had informed them about the mediation option. Within that sample, 4% of lawyer clients were advised of the mediation alternative by their lawyers only after they had run out of money.39
The studies tell us that the benefits of a mediated outcome for spouses and their children are clear and proven. The potential for a respectful and cooperative ongoing reslationships between spouses is possible. Mediation gives separating spouses the best opportunity to resolve disputes in a fashion that minimizes the emotional and financial costs of separtion.
Written by Milka Vujnovic - © April, 2008Taken from my Master of Laws, Major Research Paper - Resolving Family Law Disputes– A Critical Look at the Impact of Lawyers on Family Law ADR Processes. Osgoode Hall Law School.
1 D. Ellis, N. Stuckless, Mediating and Negotiating Marital Conflicts. (Thousand Oaks, California: Sage Publications, 1996) at 7.
2 Ibid at 8.
3 Report of the Attorney General’s Advisory Committee on Mediation in Family Law. (Ministry of the Attorney General. February 10, 1989) at 10.
4 D. Ellis, N. Stuckless, Mediating and Negotiating Marital Conflicts. Supra Note 1, at 104.
5 Ibid.
6 Ibid at 93.
7 Ibid at 92.
8 N. VerSteegh, “Using Externships to Introduce Family Law Students to New Professional Roles,” Family Court Review. Volume 43 Issue 1 January 2005, pp. 137-148. at 138.
9 Ibid.
10 M. KlinePruett, G.M. Insabella, K. Gustafson, Katherine. “The Collaborative Divorce Project: A Court-Based Intervention for Separating Parents with Young Children,” Family Court Review.Volume 43. Issue 1, January 2005. at 138.
11 Three major studies in court mediation services dealing with custody and visitation were conducted in 3 major cities in the Untied States between 1979-1984. See J. Pearson, N. Thoennes. Divorce Mediation: Reflections on a Decade of Research. InMediation Research. Supra note 13. In two of the earlier court related studies, the Denver Custody Mediation Project, mediation services were provided to 160 couples with contested custody and visitation issues and the Divorce Research Mediation Project included data collected at various sites in Los Angeles – 450 mediation clients and Delaware which considered support and compared amounts arrived at in mediation vs. through the court process.
12 See J.B. Kelly, L.L. Gigy, “Divorce Mediation: Characteristics of Clients and Outcomes.” In Kenneth Kressel and Dean G. Pruitt, eds., Mediation Research, San Francisco: Jossey -Bass Publishers, 1989. p.263. For Canadian results, see C.J. Richardson, Court Based Mediation in Four Canadian Cities: An Overview of Research Results. A report prepared for the Department of Justice Canada, February, 1988.
13 See J. Pearson, N. Thoennes. Divorce Mediation: Reflections on a Decade of Research. InMediation Research. Supra note 18at 18. In the studies referred to byJ.B. Kelly, L.L. Gigy, “Divorce Mediation: Characteristics of Clients and Outcomes.” supra note12, at 273. With comprehensive mediation, 57% reached agreement and a review of other studies at that time showed an agreement rate between 40-70% p 273 -FN In the Canadian study, C.J. Richardson, Court Based Mediation in Four Canadian Cities: An Overview of Research Result, supra note 12, p 28, 49% reached total settlement and as high as 64% when you consider the cases where partial settlement was reached.
14 J. Pearson, N. Thoennes. Divorce Mediation: Reflections on a Decade of Research. In Mediation Research. Supra note 13at 19.
15 Ibid.
16 Ibid, at 21.
17 Ibid at 23.
18 Ibid at 24.
19 J. Pearson, N. Thoeness, Divorce Mediation: An American Picture. In Divorce Mediation and the Legal Process. Eds. R. Dingwall and J. Eekelaar. (Oxford: Clarendon Press, 1988) at 84.
20 Ibid, at 27.
21 Ibid, at 27 and 28.
22 Ibid, at 30.
23 Ibid, at 31 and 32.
24 J.B. Kelly, L.L. Gigy, “Divorce Mediation: Characteristics of Clients and Outcomes.” supra note 12. The Divorce and Mediation Project was started in 1983 in San Francisco which considered 212 individuals in mediation for all issues from their divorce compared with 214 individuals involved in the court process.
25 Ibid, at 278.
26 Ibid, at 279.
27 Ibid, at 280.
28 C.J. Richardson, Court Based Mediation in Four Canadian Cities: An Overview of Research Results,. A report prepared for the Department of Justice Canada, February, 1988. Divorce mediation projects were considered in Saskatoon, Montreal, St. John’s and Winnipeg.
29 Ibid at 32.
30 Ibid at 35.
31 Ibid at 36.
32 Ibid at 45.
33 Ibid at 49.
34 D. Ellis, N. Stuckless, Mediating and Negotiating Marital Conflicts. Supra Note 1, at 125.
35 Ibid at 126 and 127.
36 Ibid at 138.
37 D. Ellis, N. Stuckless, Mediating and Negotiating Marital Conflicts. Supra Note 1, at 18.
38 Ibid at 27.
39 Ibid.