NCJ Number
93274
Journal
Mediation Quarterly Issue: 1 Dated: (September 1983) Pages: 3-13
Date Published
1983
Length
11 pages
Annotation
This paper traces the use of mediation in various cultures and subcultures, develops a definition and rationale for mediation, and identifies some divorce mediation issues.
Abstract
In China, Japan, and some parts of Africa, mediation is the traditional means for dealing with interpersonal conflicts. In many cultures, the extended family provides a mediation resource as family leaders offer wisdom, precedents, and a model to assist family members in resolving disputes. Also, ethnic and religious groups as well as other subcultures have established their own mediation systems for dispute resolution among members of the subculture. The most familiar model for mediation in the United States is in labor-management relations. In the 1960's, America saw the proliferation of strife, conflict, and discontent on many fronts, so that dispute settlement alternatives to the courts were sought as cost-effective means for addressing the demand. Mediation became particularly popular for domestic relations cases. Divorce mediation can be defined as the process by which disputants attempt to reach a consensual settlement of dispute issues with the assistance and facilitation of a neutral resource person or persons. Mediation is to be distinguished from the dispute-settlement processes of arbitration, negotiation, and conciliation, and it should not be confused with therapy. The rationale for mediation in divorce cases is its capacity to help the parties solve problems together, isolate the issues to be decided, and realize that cooperation can be of mutual advantage. These benefits are offered because mediation is less bound by rules of procedure and substantive law as well as by the assumptions or norms that dominate the adversary process. Still, the very elements that make divorce mediation so appealing create dangers and raise substantial issues. The very lack of formal procedures causes some to question the consistency and fairness of mediation settlements. Further, the checks and balances offered by litigation are absent as is the coercive capacity to obtain accurate financial records from the parties. Issues of enforceability in mediation agreements also arise. The benefits of mediation must be empirically based if the substantive issues are to be addressed, so that parties may know both the risks and the promises of mediation before choosing it.