Posted: March 22nd, 2023

Alternative Dispute Resolution: Mediation in Family Cases (Divorce)

Introduction

Alternative Dispute Resolution (ADR) involves resolving disputes legally in place of litigation. It was created through the Legal Services Authorities Act 1987 to provide alternative procedures instead of resolving disputes using formal judicial methods. The primary attribute of ADR is to achieve agreement between the involved parties without using court processes. Notably, not all individuals can afford litigation costs. Hence ADR provides a chance to access justice. Consequently, civil procedure rules allowed judges to end court proceedings whenever they felt the issue could be solved through ADR, irrespective of the parties’ opinion (“Alternative Disputes Resolution”). Although various avenues, including courts of law, have settled family cases regarding divorce, the judicial systems have recommended the application of ADR as an important dispute resolution mechanism; hence, public and legal professionals have adopted the approach when mediating family cases.

Alternative Dispute Resolution

It has become popular as a cheaper, more efficient, and satisfactory method in comparison to traditional litigation. Some of ADR methods include arbitration, a procedure where disputing parties give their arguments and proof to an independent third party (arbitrator), to solve their conflict. The second aspect includes negotiation, which involves an independent third party who identifies a disputed subject and develops options, examine alternatives, and finally come to an agreement. Mediation is the third concept, which involves an independent third party (mediator) who helps parties to agree (NSW). The difference between mediation and the other two alternatives is that mediator resists from offering advice or opinion on the subjects since they have no role in choosing the outcome of the process.

The growth of Alternative Dispute Resolution (ADR) processes can be traced to two different occurrences. First, advocates for justice in the 1960s and 1970s realized lack of responsiveness in the formal judicial processes and wanted to find better procedures and outcomes. This concern ignited a desire to reduce monopoly of lawyers in dispute resolutions and instead include local institutions that used community members and expertise in these areas of dispute. The belief was that flexible party controlled processes would offer the chance to be creative, give Pareto-optimal solutions, reduce waste and harm to disputers involved, improve relationships, and achieve more responsiveness to the interests and needs of the parties, instead of stylized arguments of the formal justice system. The second argument made by judicial officers was that litigation involved high costs and delays (Meadow). Hence it was important to divert some cases from the court, to reduce case backlog as well as offer more efficient methods of offering justice.

Alternative Dispute Resolution became famous with civil procedure reforms introduction in England, Hong Kong, and Australia. The civil justice system review of Lord Woolf in Wales and England ignited these significant reforms, especially judicial case management introduction and pre-litigation ADR. Even though many mediation schemes in Australia before the Woolf’s report were available, the England report offered a thrust for a civil litigation national review. The Woolf report was also influential to Hong Kong after judiciary realized that mediation was significant in supplementing proceedings of the court. This influence can be traced to the Civil Justice Reform (CJR) of 2009. The main objectives of CJR were to reduce the cost of civil procedures, to facilitate dispute settlement, and to promote reasonable procedural economy (Meadow). Hence, the ADR promises ownership of conflict, the autonomy of parties, and opportunities to transform.

The Concept of Mediation

Mediation involves an impartial third party, known as a mediator, bringing in an agreement on a contested issue. Many times, when people face the prospect of divorce, the first choice is always going to trial. However, appearance before judges can be terrifying. Hence mediation becomes a more comforting option. The process has emerged as an essential dispute resolution alternative in the past 30 years (“Mediation Process”). Notable, mediation provides an alternative to the formal legal process.

Mediation is applied for several reasons; firstly, it can be organized within a few hours, reducing operational costs. Secondly, mediation is affordable, with cost being approximately 100 pounds per party which is quite affordable compared to the amount paid for litigation. Thirdly, mediation is confidential as compared to the lawsuit since no winners and losers, such as in courts. Instead, mediation leads to an agreement where both parties benefit. Fourthly, mediation offers space for parties in a dispute by considering values, such as meanings, emotions, and relationships (“Mediation Process”). Hence, mediation emphasizes on process, procedures, structures and communication styles.

Different models are applicable in choosing the favorable mediation approach. The first model is guided by the satisfaction story, which states that mediation is better in resolving disputes since it applies collaborative and integrative methods. The second aspect is a social justice story, which contends that parties should be organized by a common interest to attain justice. Transformation story other aspect that requires parties to clarify their objectives and disputes. Oppression story is the last approach that maintains that mediation is not always safe since it is informal and  the privileged party might take advantage. The satisfaction story is the most common, based on the idea that conflicts require a solution. Hence, transformative mediation empowers the parties (“Alternative Dispute”). Consequently, mediators must chose between transformative and problem-solving methods because it is impossible to combine the two.  

Mediation models consider dispute to neither be wrong nor right. They highlight that conflicts are not meant to be solved, but to learn from, and hence, the more dangerous the mediation, the more transformational it becomes. Mediation can be applied using various mediation styles, such as settlement-driven, generic, cognitive, narrative, and humanistic (“Mediation Process”). These styles are different according to their focus level on various aspects, including emotions, challenges, and needs among other concepts.

Mediators can apply any style of mediation depending on its efficacy. The first approach is the facilitative mediation popularized in the 1960s and 1970s. In this style, the mediator structures a procedure to help parties mutually resolve the issues. Some questions are posed to understand parties’ interests, validate their points, and examine their options. A facilitative mediator resists from giving recommendations to the disputing parties, advising or offering an opinion of the case outcome, and neither do they forecast the case results. The mediator works on the process while the parties work on the outcome. The main aim of facilitative mediators is to assist parties to agree based on understanding and information, and allow them to listen to each other’s views. These mediators expect the parties to influence the decision-making process instead of the party’s counsel. During the beginning of facilitative mediation, ADR was usually on a volunteer basis (Zumeta). Hence the mediators had no required expertise on the disputed issue.

The second style is the evaluative mediation, which was created in settlement conferences conducted by judges. The mediator assists the disputers to find a solution by highlighting the weaknesses in their conflict, and forecasting the actions of the jury or judge. The mediator then makes a recommendation on the case informally or formally. Therefore, evaluative mediators focus on legal rights of parties and not their interests and needs. They anchor their evaluation on the guide of the legal notion of fairness. Mediators usually convene separately with disputer and their attorneys to practice shuttle diplomacy. They assist the parties and their counsels in examining the legal costs and position in relation to the benefits of considering a legal resolution instead of mediation. The mediator sets the process and directly influences the mediation outcome. This process started in court-referred mediation, where attorneys, in collaboration with the court, select a mediator and actively participate in the mediation process (Zumeta). The assumption is that they have wide expertise in the disputed area.

The third and most current style is transformative mediation, based on each party’s recognition and empowerment of values, such as interests and needs. The assumption is that mediation can transform a party or both. Mediators and the parties convene and offer each other recognition (Zumeta). These mediators allow parties to shape the process’s procedure and outcome, while the mediator follows them.

History of Mediation

Mediation is internationally recognized, especially in African and Asian countries. In 1998, Lord Chancellors’ Department found out that 62% of cases were completed efficiently using mediation without reference to the court. They also found that mediation successfully handled many cases, such as personal injury and divorce, where divorce mediation was strengthened following the Family Law Act of 1996 (“Mediation Process”). Since 1998, mediation in the United States has gained popularity from 10% to over 50%, while in the United Kingdom it has not gone past 50% as of 2018. For instance, in 2008, Ireland resolved 44 cases through mediation, while in 2009, 64 cases were solved through the same mechanism (“Alternative Dispute”).

The United States gained interest in mediation as a form of dispute resolution in the 1960s, following an upsurge of conflict and discontent due to Vietnam War, students and labor unrests, gender roles challenges, and racial discrimination protests. These issues raised the demand for courts, yet no increase in court resources led to a backlog in civil case dockets. In addition, there was an increase in domestic relations cases, which resulted in the acceptance of divorce. Hence, court-related family mediation increased to preserve judicial resources and offer better results, especially where children were involved (Folberg 36). On the other hand, community-based mediation sessions prospered out of the courts as a means to solve neighborhood disputes. More so, legal services began mediation and arbitration in cases where the parties could not afford court fees. Hence, this made mediation offered by attorneys more popular (Folberg 36). Therefore, courts started hiring full-time employees to handle mediation programs.

The Alternative Dispute Resolution Act of 1998 expected all district courts to create ADR programs. Later, the American Arbitration Association expanded and allowed commercial mediation in the 1980s. Besides, the Center for Public Resources in collaboration with law firms had corporations and law firms promise that they would welcome mediation to solve conflicts instead of pursuing litigation. This led to opening of the first private ADR provider in 1979, and others were created later (Folberg 37). Following these efforts, in over 25 years period, trials by jury in 22 states in the U.S have declined by more than 25% (Folberg 37, 38). Hence mediation has become a popular method for dispute resolution out of courts.

The Mediation Process

Mediation involves the intervention of a neutral third person who assists the involved parties in settling, injecting doubt, reality, and fear in their positions. The main goals of mediation are fact-finding, negotiation, and resolution. Mediation undergoes many phases, starting with preliminary arrangements, such as mediator selection, date, fees, time, and place. The second phase is opening statements of parties, which involves information gathering, mediators opening comments, issues identification, and options generation and bargaining, Finally, impasse or agreement phase, which involves drafting a memorandum of settlement, is initiated (Coleman). The mediator is responsible for managing the entire mediation process.

In the mediation process, the mediator plays the executive role, while the disputing parties are responsible for content brought into the process. The mediator helps the parties through the process by engaging them in creative thinking about the conflict in question and also facilitates the participants by asking queries (“Mediation Process”). This helps them to create attitudes and thoughts about their disputes.

The process of mediation is structured in various stages. The first stage involves preparations conducted before the day of mediation. At this level, the mediator, among other tasks, assesses parties’ personalities, their needs, and other settlement discussions. Secondly, the opening phase starts when a mediator is appointed and calls for a meeting with the participants. A process is outlined, and various methods of finding a resolution are suggested. The main responsibility is to build confidence, trust and set ground rules. The third stage involves parties giving their perspective without interruption. The parties first narrate a version of the issues leading to mediation (statement of innocence). The second part is where the parties give their story illuminating the other party badly (story of responsibility), and the last part is the disputers defining the problem leading them to mediation. The third stage is the exploring phase, where parties are helped to comprehend the perspective of the other. The fourth stage is the negotiating phase, where parties highlight the matters that must be resolved. The mediator frames the subject in ways that encourage problem-solving. In the final stage, the mediation finally leads to an agreement. The mediator assists in changing from a preferred alternative to a settlement agreement. (“Mediation Process”).  When a deal is not achieved, the mediator acknowledges the current progress and could suggest for future mediation.

The Concept of Divorce

Marriage can end after the death of one of the spouses, a decree of nullity can be filed to show that no valid marriage existed, or it can be terminated through a divorce. Currently, the rates have increased, with more than 33% of marriages ending up in divorce (“Alternative Dispute Resolution”). These high rates can be associated with increased social mobility, changing life expectancy, the liberation of women, permissiveness of society, the acceptability of divorce, the decline in spiritual beliefs and freedom of Divorce Reform Act of 1969

Until the mid-nineteenth century, the law viewed marriage as a lifelong union that could not be dissolved. The courts could only allow divorce a mensa et thoro through a judicial separation and not divorce. The parties could live separately, but they were not allowed to remarry. The only way to get divorced was by Private Act of Parliament, which was quite expensive and lengthy. The first freedom was introduced by the Matrimonial Causes Act of 1857, which allowed the court to allow divorce whenever the petitioner proved adultery of the accused and in the absence of condonation and collusion. Adultery remained the only allowable reason for divorce; however, the Matrimonial Causes Act of 1937 introduced other allowable reasons, including bigamy, sodomy, incest, cruelty, insanity, and desertion.  Hence, estimates show that since 1973, there was a likelihood that 44% of marriages would end up in divorce. By 1980, analysts found that 50% of marriages ended up in divorce. These observations have been the same until the 2000s (Kennedy & Ruggles. 587). Hence divorce rates have remained constant since the 1980s.

Mediation During Divorce

Divorce is a decision that involves financial, emotional, and legal difficulties for spouses, children and all family members. During formal divorce proceedings, relations in the family cease becoming private matter since professionals have to be involved. Traditional divorce process was set as a win-lose scenario where lawyers took an advisory, partisan and representative position in the litigation process while mental health experts worked on the emotionally positioned issues concerning parenting and children (Baiter 57). Hence, divorce was a collaborative process involving different parties.

Solving family issues, especially when children are involved, needs a less traumatic and adaptable process. Mediation is one mechanism of cordial resolution of family relationships since it focuses on not only the specific divorce disputes but also rights to parental care, relationships with the children, and other disputes connected to the entire family associations. Hence, it is encouraged as a vital method of resolving family disputes, including divorce, especially in cases where children are involved. Notably,  divorce is a distressing process for children. The process leads to significant changes in their lives since they cannot influence it, affecting their emotional development (Senija 416). Accordingly, mediation helps preserve relationships between parties, protects and promotes the family, especially the minors.

Mediation is important in family matters. During a divorce, both parties engage mediators to solve the dispute and agree on a particular settlement instead of involving a court process. The Family Law Act of 1996 popularized the significance of mediation in divorce, though it has its own set of challenges. Mediation, as highlighted by the Legal Aid Board, can be denied unless it appears to be the best alternative for a particular case. A code of practice is set to raise reconciliation throughout the process. Mediation is appropriate at the early stages, where disputers are invited to attend a briefing with mediators (“Mediation process”). Hence, in some cases, those who dispute can be denied the mediation alternative, leading to court litigation.

An Example of a Practical Case

Melany and Steve from Massachusetts, aged 48 and 47, decided to divorce. They had three children, ages 12, 14, and 18-year-olds and worked for reputable companies with a steady income. The main issue was their marital home, whose market value was $600,000 and mortgage was $300,000. The mortgage and home bore their names, so they considered divorce mediation to resolve the current and upcoming issues.

Before the mediation sessions, Melany and Steve were angry, nervous, defensive and could not hold a civilized conversation, hence during the sessions; the mediators were able to assist them in relaxing and face their fears. They were able to discuss the issues and concluded that the children were the main priority. Hence, the mediation provided a healthy and civilized process regarding common goals.

The mediator was able to educate the couple and discuss their options. The first option was to sell their asset at an agreed price. They could decide to use a broker and get advice from a mediator or a counsel on the sale process, preparation of the house, and division of the proceeds. The second option allowed any party to buy the asset at that particular time. The parties would find an approximate fair value of the house and agree on a buyout price, which could be achieved through the help of a mediator. The third option was for one party to live in the house for a specified time after setting a final date to which they would sell or refinance. They decided that Melany would remain in the house and pay all costs except major repairs and capital movements. The agreement was that the two parties would stay on the mortgage and the title. Ultimately, Melany could buyout Steve in the next 5 years or refinance. Besides, they agreed that the parties would co-parent the children and revisit the agreement after 5 years.

Discussion of the Dispute

Two main entities are at stake in Melany and Steve divorce. The first one is their marital home, whose market value was $600,000, and a mortgage worth $300,000 that bore both their names. The second issue was the children where they needed to agree on parenting mechanism. Past studies show that divorce significantly impacts children of the respective parties, since divorce tends to be stressful to both children and parents. In fact, reports show that children who come from divorced families tend to have behavioral and emotional problems up to the age of 23 years, as compared to those in non-divorced, high conflict families (Rappaport 358). Hence, the shared property and children were the main things at stake in this mediation.

Power of the Parties

Power refers to the ability to influence outcomes and affect the actions and perceptions of other people. Power of mediators is their ability to shift parties in an intended direction. However, since the mediation process is non-binding, voluntary, and non-violent, it makes sure that power is concentrated with the disputing parties and not with the mediators since the parties have power to commence mediation as well as to terminate it (Azad). Hence, before mediation starts, the mediator must gain acceptability from the parties and have the ability to satisfy the disputers by applying different strategies and techniques.

Mediators can possess reward power that allows them to propose change in behavior in exchange for side payments, coercive power that rely on sanctions and threats meant to change behavior of disputants.  Expert power, which comes from knowledge and expertise of the mediator, legitimate power that  is founded on international law and legal authority, referent power that emanates from relationship between disputants and the mediator, and informational power, which is responsible for positioning the mediator as a bearer of message between the disputing parties (Azad). The power of mediation is the social power, which refers to relationships and resources that mediators carry to the dispute, and tactical strength, which is what negotiators do within the negotiating table.

For mediation to be successful the disputing parties need to have equivalent or almost equal power since imbalances in power tend to make arbitration unfair, litigation becomes a better option. It is possible to have power imbalances because no party can hold all the power since it is hard to quantify negotiation power or measure its application. Power extent is determined by subjective, crude, and nonnumerical appraisal while its assessment relies on a forecast of what is likely to happen during the mediation, and this forecast is expected to have flaws (Azad). Therefore, it is better to focus on the aptitudes of the disputing parties than their powers.

Power imbalance might be evident between the parties, creating bargaining power. Such conceptions may arise from the legal and factual merits of their ideologies. Moreover, resources owned by one party could give them power over the other party (Dunlop). In this divorce case, Steve and Melany were employed, with better incomes, and shared ownership of the house and mortgage, reducing any possible power imbalance between them. Thus, Melany and Steve had a fair chance in the mediation process.

Impact of Third Party

Mediation offers procedures that assist the disputing parties in understanding divorce topics that must be addressed during the agreement process. Melany and Steve were educated on matters related to assets, liabilities, children, and cash flow issues. Mediators can be family law attorneys licensed to prepare all documentation required by the court (Eskridge). For instance, Melany and Steve’s’ mediators prepared court documents and filed them to the court. They got their documents reviewed by a financial analyst, insurance provider and individual attorneys to offer input on what was necessary.

The impartiality of a mediator depends on the disputants’ perception. A Mediator is known as the third party in a settlement, which is neutral and impartial and bears no authority in making decisions. Mediation pertains to two styles, low-power low-stake mediator and high-power high-stake mediator. They both advocate for impartiality but differ in their reasons for success (Eskridge). In Melany and Steve divorce case, mediators applied low-power and low-stake style, where they guided the parties but left them to make the final decision.

Speed and Cost of Mediation Procedure

Mediation is a flexible, cost-effective, and speedy way of solving disputes. It is relatively quick in dispute resolution as compared to litigation. The most appropriate time to mediate is usually before filing a lawsuit. Once mediation is closed, the disputers and the counsels draft a preliminary settlement agreement that addresses all terms of the settlement, and everyone signs it, and a formal settlement is drafted later. In comparison, litigation is usually time-consuming, and parties will likely spend years in a single case (Eskridge). For instance, in the U.S., most divorce cases are set for trial a year after filing of the complaint.

Mediation is one of the economic processes of dispute resolution, though this depends on the mediators’ expertise, experience and popularity, and charging rate. Usually, parties involved split mediators’ cost as a sign of investment of the parties in the case and their willingness to settle. Even though mediating costs are minimal compared to litigation, when parties decide to carry out mediation after filing a lawsuit, they end up using more money on attorney’s fees, jury fees, court and report fees, among other charges (Eskridge). Hence mediation is a quicker and cost-effective process as compared to litigation. The mediation took two months for Melany and Steve, and paperwork was filed in court after three weeks. This is a short period, as compared to litigation, which takes at least one year.

Conclusion

Mediation as a voluntary alternative dispute resolution process is acceptable globally in resolving disputes, such as divorce, systematically by applying techniques and skills which vary from one mediator to another. Mediation approach, during a divorce, emphasizes on solving the problem rather than delivering a verdict. The main advantage of using mediation in settling a divorce is that the parties are involved directly in negotiating their agreement; hence, the settlement is not imposed upon them as the case of litigation. While the limitation of the process is that it is hard to ensure a fair settlement to both parties. Hence, mediators need to work on reducing this limitation and enhance mediation practice standards to ensure mediation remains an effective tool for dispensing justice.

 

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