In Mediation, Couples Make Their Own Laws of Fairness

By Laura Melton Tucker, August 26th, 2010

Listen to this entry.

While mediators sing the praises of mediation to their clients, there’s a chorus of research that backs up the mediator’s song:  divorcing couples who mediate have better outcomes and experience more satisfaction than those who litigate.  The latest issue of the Conflict Resolution Quarterly describes these findings in “Divorce Mediation Outcome Research:  A Meta-Analysis.” Looking at several indices to measure outcomes and satisfaction, the research study describes how mediation outperforms litigation in most areas, with a few notable exceptions which I’ll detail later.

According to the Quarterly article, mediation has the most positive effects in three main areas of the divorce experience:

  • spousal relationships
  • parents’ understanding of children’s needs
  • the emotional satisfaction of participants who are able to express their feelings and be heard during mediation

Mediation models a process of communication that discourages hostility and encourages compromise, negotiation and agreement.  Couples who sit down to draft their own agreements feel that they create a more fair solution.  In litigation, by contrast, attorneys advise their clients about what the courts will consider fair.  In this sense, mediation produces “unique agreements that are tailor made by couples to fit their circumstances and desires…they create their own laws of fairness.”  Conversely, the courts don’t have the time or knowledge of the individuals to customize agreements.  Consequently, the courts use a set of procedures that produce similar outcomes for the litigants.

In mediation, parents have an opportunity to discuss what will be best for the children.  They’re able to share concerns about meeting the kids needs, while honoring their own needs, as well.  Research shows that a child’s adjustment to divorce is positively affected by a cooperative and supportive relationship between spouses during the divorce.  Mediation is a cooperative process, while litigation is adversarial.

Couples who mediate experience feelings of empowerment and self-determination when they’re able to draft their own agreement.  They also report feeling that they have a better understanding of the underlying issues in a divorce than did couples who litigated.  According to the research, for couples dealing with domestic violence issues, mediation offers another benefit.  Mediators screen for domestic violence to protect the safety of the participants and prevent power imbalances at the mediation table. Early identification by mediators of victims of domestic violence serves the public good by routing these couples into appropriate services and court protection.

Mediation is often described as a “win-win” for clients.  This is an idealistic description, better suited to a business negotiation where happy entrepreneurs count their money on both sides.  Instead, most divorce mediations are heavy with heartache and regret.  When dividing assets and sharing the children, my clients who are able to find the least painful compromise, most fair to both sides, seem the happiest with their outcome.  When clients ask me for my opinion about something, I never presume to know what is fair.  Instead, I ask questions and summarize their thoughts, to help them sort, organize and clarify the issues before them.

Unfortunately, the research reports that the mediator’s role is often a source of confusion and frustration to the clients.  Some in the study reported disappointment that their mediator didn’t offer solutions, didn’t save their marriage or provide counseling.  Also alarming, the research showed that some mediation participants felt pressured into agreements.   According to one 1999 study included in the article, in some cases, women who mediated received a lesser percentage of the family’s income in the divorce process than those who litigated.  This finding is a good reminder that mediation participants should consult an attorney to understand their legal rights and obligations.  For this reason, a mediation agreement is never binding, rather it is subject to change as the divorcing couple gathers information.  The takeaway is that in most cases, mediation is an excellent alternative to litigation.  With eyes wide open, clients can draft unique, personalized solutions, while creating a tone of cooperation and mutual respect that soothes and reassures the children caught in the middle.

Comments are closed.

© Peacewise Mediation, Iowa City. All rights reserved. Design by Christina Willner