Posted: March 24th, 2023

Divorce Mediation

Table of Contents

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Introduction. 3

Legal Recognition of Marital Rights and Obligations. 3

Mediation Among Same-Sex Couples. 4

Knowledge and Skills. 5

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Mediation During a Divorce. 6

Approaches to Mediation during a Divorce. 7

Challenges Involved in Family and Divorce Mediation. 9

Child Custody. 10

Implication of Divorce Mediation. 11

Analysis. 13

Conclusion. 16

References. 17

Family and Divorce Mediation for Same-Sex Couples


Major changes have taken place in terms of legal, social, and institutional recognition of the rights and obligations of same-sex couples, particularly since June 2015. Nonetheless, for success in mediating between same-sex couples, the point of reference should be comprehension of the context within which conflicts occur. Indeed, such approach will indicate the exceptional nature of the conflicts involving same-sex couples as they differ from those occurring between heterosexual couples. It should be noted that such conflicts could arise at any point in the relationship, including as the relationship begins, as it progresses, and in such a case, where a need for a divorce arises (Roberts, 2014). For most homosexual couples, the stages of the relationship evolve in a far less formal manner when compared to heterosexual relationships, including marriage. Such underlies the differences in the strategies that should be assumed when mediating separation between same-sex couples. With the general recognition of the marital rights and obligations for same-sex couples, it is necessary to investigate further how this has changed mediation in divorce as well as the challenges that remain in the process, especially as compared to mediating divorce among heterosexual couples.

Legal Recognition of Marital Rights and Obligations

Goldberg et al. (2004) provides a background of the landmark change that lays the ground for present and future negotiations during separation among same-sex couples. Previously, effectiveness of mediation during such cases was hampered by the reality that same-sex relationships, including marriage were illegal in most states in the country. However, this is no longer the case following the court ruling in Obergefell v. Hodges. A case was filed in court by groups of same-sex couples against agencies in their states that dealt with matters pertaining such legal affairs. The states concerned were Ohio, Kentucky, Michigan, and Tennessee. The case challenged the legality of the bans in the states on same-sex marriage or the failure to recognize such unions occurring in the jurisdictions where such are legal. The argument was that such bans were a violation of the Fourteenth Amendment’s Due Process Clause and the Equal Protection Clause. One of the groups also challenge the practice under the Civil Rights Act. The Supreme Court of the United States rules in favor of the plaintiffs.

The legal recognition of the rights to marriage for same-sex couples has serious implication on various issues affecting them. While family and divorce negotiation developed within the context of heterosexual couples, the change in the legal framework calls for changes in the negotiations as pertain same-sex couples (Folberg et al., 2004). Although there are some fundamental differences between the same sex and heterosexual couples, such do not alter the ideals and principles of negotiations. According Roberts (2014) there remains some important legal knowledge, skills, and approaches that should be developed by negotiators in divorce facing same-sex couples.

Mediation Among Same-Sex Couples

From a legal perspective, Roberts (2014) suggests that the need for mediation arises in a context of conflict. Kennedy (2012) supports the claims by suggesting that the context of the conflicts underlies the form of negotiation to be adopted. Thus, there is a considerable difference between the same-sex couples as compared to heterosexual couples. Among the couples, the conflict can start for the first time at the beginning of the relationship, either concerning the “prenuptial” matters of money, property, or other assets or in relation to planned adoption or pregnancy. The reality emanates from the more informal manner in which most of the same-sex relationships are anchored (Roberts, 2014). However, the importance of mediation is a subject that cannot be ignored, even in a legal environment. Based on the reality of increasing same-sex relationships, many associations culminate in marriage where even the children are involved. Such is also a reality given the legal changes in the United States recognizing same-sex marriages.

Knowledge and Skills

While it has been argued that there is a lack of a legal framework in negotiating a divorce among same-sex couples, the law still lays the foundation for such negotiations. Thus, the negotiator should have an adequate understanding of the legislation that guides negotiations among same-sex couples. It should be noted that such laws still differ from one state to another. Thus, even with the Supreme Court decision ruling for the legality of same-sex marriage, various other issues should be taken into consideration, including what the laws say about property ownership or in such cases where children are involved (Folberg et al. 2004). During the mediation process, the negotiator should understand and use the legal principles, allowing protection for the rights of the couples as well as those of the children in case they are present.

Just like in mediation involving heterosexual couples, it is necessary for the mediator to remain impartial. In that aspect, it means that the mediator should not allow personal beliefs to interfere with impartiality. The mediator should always be guided by the code of ethics and professional values such that all the parties in the conflict, including the children, are protected (Folberg et al., 2004). The mediator should also be able to assist the parties in the conflict to come to a point of agreement in the issues they are conflicting about without appearing to take sides. Emotional intelligence is an important skill in the process, especially given the reality that divorce cases whether involving same-sex or heterosexual couples are emotionally charged affairs (Cahn, 2013). Developing appropriate negotiation skills highlight the potential of success for negotiators in same-sex couple’s separation or divorce.

Mediation During a Divorce

The recent past has witnessed major achievements regarding the legal acceptance of gay couples and relationships in the United States and different countries across the world. In fact, it suggests that there is an increase in the number of same-sex couples who are in committed relationships where even the children are involved. However, Kennedy (2012) suggests that the changes have not been all-encompassing as there are many areas of such relationships that do not exist in the law. The area of mediation when it comes to the same-sex relationships is such areas that remain uncovered by the law. The increasing awareness of the matters relating to the gay couples is yet to touch on the issue of mediation in conflicts that arise at different points in the formation of the relationship, including divorce and child custody. Many researchers have investigated some successes and problems involved in ensuring success in same-sex relationships. However, there are potential for positive changes starting with the ruling in Obergefell v. Hodge.

While there is no underlying legal spectrum of family law for same-sex families, the framework for addressing divorce disputes between same-sex couples can only be guided by the economic and limited protection pathway for lesbians and gays. Ideally, most couples come into being through joint ownership of property or assets, which end up causing the need for commitment. Such is the underlying basis for the legal and social framework as far as the negotiations are concerned. Leckey (2013) anchors the argument on the legal framework in same-sex marriages. The longstanding civil breach of contract offers the conceptual dimension for addressing the challenges of divorce among same-sex families. The implication of this legal environment depicts the definition of same-sex marriage, its future expectation, and the general atmosphere of the gendered society. It is necessary to come up with a better understanding of what it means to have same-sex couples. Regardless the fact that there are some basis for negotiations, the complexity due to lack of adequate legal guidelines cannot be ignored.

The approach to same-sex couples’ negotiations during divorce is founded on the need to come up with amicable solutions to conflict, provide the basis for separation of property and child custody among other similar issues. Negotiation in same-sex relationship involves looking back to whatever kind of contract, oral or otherwise, that the partners might have entered into. Indeed, whether the marriage involves same-sex or a heterosexual couple is a contract between two consenting adults. Such should be the basis for negotiation when the partners agree to terminate the contract. From such a point of view, the negotiation process does not have to be guided by a different legal framework from the one that guides other forms of marriage. However, the challenges emerge because of the difference in the way such relationships evolve to commitment, ownership of property, and aspect of having the children.

Approaches to Mediation During a Divorce

Family and divorce mediation provides an opportunity whereby same-sex marriages achieve cooperation in the event there are challenges in the relationship. According to Kennedy (2012), it is plausible to note that the management of arguments in divorce mediation sessions is the primary goal. Based on the advantage that mediation offers a chance for same-sex couples to address their problems in a neutral setting, the use of a third party facilitates the process of resolving some custody disputes. Through the solution-based approach inherent in the pathway of mediation, same-sex couples can develop and maintain effective plans of addressing the challenges of divorce. Legal cases have characterized the significant trends that the interactions organization in mediation within divorce cases among the same sex couples is different from ordinary conversations. In that aspect, it involves a system of turn-taking where the disputants are expected to address the mediator rather than addressing each other. Roberts (2014) notes that it is common to find exchanges during the negotiation, which disputants speak directly to each other and do not always observe the system of turn-taking. The implication of this thought from a legal dimension shapes the trajectory that in some cases; the disputants initiate the exit to their arguments instead of relying on the mediators to do it.

The nature of conflict shapes the understanding of social and legal frameworks in mediating disputes during same-sex divorce. Roberts (2014) underscores that it becomes imperative for same-sex couples to recognize the extent to which the disputes are handled in family law. With little legal framework guiding the mediation process, most jurists have borrowed from the out of court settlement to facilitate the dissolution of the same sex marriages. While mediation calls for a nuanced awareness of how and when the disputes emerged, the most critical legal aspect stems from the deep understanding of the rights and duties of the partner.

The model works by increasing the protective factors and reducing the risk factors through the improvement of family interactions that are assumed as the cause of the symptoms (Kennedy, 2012). The trajectory of the legal framework of divorce demonstrates a dramatic shift in the nature of divorce, dissolution of same-sex marriage, and extension of the obligations and marital rights of the couple. In certain states, it is critical that the courts impose marital rules on registered same-sex couples. To illustrate, it emerges that in California, there was an enactment of the law in 2008, which made it clear for the same-sex couples to sign a preregistration agreement. In essence, such registration provides a retroactive extension of marital rights among the same sex couples.

Leckey (2013) investigates the reality of marriage, from the traditional perspective regarding the same-sex couples. Power imbalances can destroy intimate relationships. Mediation builds on the proposal that deals with issues related to ego, domestic chores, finance sharing, ex-spouses, friends, in-laws, and property disputes in the relationship. Power struggles may lead partners alienate each other even if they live in the same house. In that case, the model of brief strategic family therapy (BSFT) guides the solutions. Mediation shapes the belief that divorce is not the ultimate solution but instead the couples should find an alternative way out. To address the problem, same-sex couples should re-establish broken down communication lines to reduce arguments by adopting the power of the two.

Challenges Involved in Family and Divorce Mediation

In fact, gay couples encounter major challenges, which should be addressed from a legal perspective to make negotiations more effective. Kennedy (2012) suggests the importance of recognizing the reality of such families in the modern society, thus, the importance of developing legal principles that have implications on their relationships. Long-term gay couples are faced with challenges that differ from the encounters faced by heterosexual couples, and which form the basis for conflict negotiation. In the recent past, there has been an extension of marital obligations and rights to same-sex couples in some states. Such a development has initiated most couples to re-assess and even to further change their current legal arrangement by getting into marital unions. On the contrary, same-sex couples have to navigate the relationships around a speedily transforming framework of legal and social values, making their relationships more complicated.

Regardless of the court ruling, there is evidence to indicate that the same-sex couples still face challenges during negotiations because theirs is an area that is yet to develop. Although the divorce for the same-sex couples are as emotional and complicated as heterosexual couples, the separation is made even more complex based on the inadequacy of the legal basis for the process. Marriage between same-sex couples is emerging as a new paradigm even in the legal context, which means that it is an area that is yet to be adequately explored. Additionally, Kennedy (2012) adds that the domestic partnership as well as civil union registrations, do adequately relate to the same-sex couples as they do for heterosexual couples.

The existing legislations lack the equivalent social significance or symbolic implication for such couples. Therefore, the majority of the same sex relationships experience their transition in a more informal manner from dating to marriage, or to long-term commitment. The evidence is a reality regardless of the recent change in law accepting the legal unions (NeJaime, 2016). Evidently, issues associated with formation of relationships among gay couples characteristically emerge in relation to specific financial events, like buying a house. In that aspect, it means that the commitments are never based on the predictable societal or legal milestone like marriage among heterosexual couples. Therefore, such are the important issues that should be taken into consideration in developing the framework for the negotiations.

Child Custody

Another unique aspect of the relationship and mediation between same-sex couples relates to the aspect of the children. In the case of the heterosexual couples, children are as a result, intended or unintended, of a sexual activity. Such differs from the same-sex couples’, where children are a consequence of a deliberate plan, through adoption, or birth where the aspect of egg donation is considered. Questions of insemination have emerged in the cases of lesbian couples, where the role played by the egg donor cannot be ignored. There is an additional situation where the role of the gestational mother is also considered (Roberts, 2014). In the case of gay men, there is complexity in matters concerning sperm or egg donation, adoption, or surrogate mothers. In that concept, it forms the basis of the conflicts between the gay couples somewhere along the way. Greater complexity emerges mostly during a time when the couple breaks up and has to go through a divorce. The manner in which the child came into being can make an already complicated issue even more multifaceted. The psychological implications of the process highlight the complexity of such mediation processes.

Implication of Divorce Mediation

In the case of mediation, the couples attend divorce sessions in a bid to resolve their disputes. Although in some cases the mediator is the one who initiate the exit to disputants’ arguments, in other cases, the disputants themselves initiate the exit. The findings are important as they provide the real picture in divorce mediation sessions. The research implies that it is premature to make generalized conclusions about management of conflict in mediation without a clear understanding of the same. The negotiation process highlights the need to come up with adequate understanding of the environment within which the conflict occurs. For same-sex couples, the disputes can be the same as those of the heterosexual couples, given the fact that they occur in a familial setting (NeJaime, 2016). Therefore, having the knowledge of the scope should be the case, given the reality of the exceptional nature of the conflicts affecting gay couples. An understanding of how the conflicts differ from the typical conflicts involving heterosexual ones highlights the basis for success of such negotiations.

The adoption of the mediation process in the court systems of many countries and its reception is critical is addressing aspects of divorce among the same sex couples. While research has established that there is a growing concern on the appropriateness of divorce matters being addressed in court, the application of the legal statutes offers varied perspectives on the hypothesis that although mediation is appropriate in some cases, it is unsuitable in cases that involve hidden cash (Cahn, 2013). The reality on the ground is that there is still inadequate legal framework for addressing divorce involving same-sex couples. Negotiations during divorce have always involved heterosexual couples, with the involvement of gay couples being a new phenomenon. Conventionally, dispute resolution involving the court assumes the law, and such is not available in the current legal system. Thus, for effective negotiations, the beginning step should be a change in the law.

The lawyers participating in the process of mediation indicated that it was easier for a person to tell the truth when under oath and with the judge facing the disputants. However, it is plausible to note that some couples in the same-sex environment exhibited a trend that they were more likely to follow their agreement and comply with it if it was reached through the mediation process. As a result, it is palpable that the mediation process is better than litigation without giving exceptions. Indeed, this can be attributed to the fact that the processes are subjective to the cases they have handled. According to Wahlert & Fiester (2012), it is similarly important to underscore that courts can utilize the legal principles of mediation to determine cases of divorce among the same sex marriages to be solved through the mediation process. Studies imply that not all divorce cases should be solved using the mediation. However, the most effective method for solving the conflict entails the uniqueness of the case in question.

Indeed, to have an effective mediation supported by legal mechanism, it is critical that the same-sex couples in the divorce process agree on the mediator as a sanction by the court proceedings. Therefore, the mediator should understand the parties that are trying to resolve their conflicts and what the interests of the parties are. In addition, the arbitrator should take everything in detail when it comes to questioning both parties. However, the approach is contrary to the judicial method where the evidence and legal statutes have to create options and alternatives in case the parties in conflict appear to be unable to have an agreement (Cahn, 2013). Hence, in this case, the option should be achievable and extremely realistic, and it should be acceptable and conducive to the parties. Arguably, the distinctive feature in these two societies implies that a mediator should treat the parties with utmost respect and apply a high level of dignity so that the parties can present their grievances to the negotiator openly and feel secure to voice their concerns.

Negotiation conceptual literature can be applied in resolving different types of conflict and dispute that are facing a particular area (Cahn, 2013). The literature entails the use of the descriptive theory, which helps the mediator and the warring parties in understanding what is happening as well as the choices of the parties. Then, the parties will look at their choices and then know how to prepare themselves for the process. The negotiation will then proceed where a comprised approach is adopted by applying the prescriptive theory. In any mediation mechanism, it is necessary to look at the elements of a successful negotiation. The idea behind the theory is in the negotiation to be mediated by an individual with adequate understanding of the dynamics involved in the formation of the gay couples. Such is the case given the reality that formation in same-sex relationship might differ from heterosexual relationships (NeJaime, 2016). Regardless of the importance of such legal representatives, they remain inadequate; hence, indicating the need for change to include a conceptual framework in the training of such representatives.


The development of a family policy in the 20th century has been instrumental in the current changes in the family setups across the globe. Legally, the policy was aimed at encouraging the adopting governments to regulate the lives of citizens and their relationships. Among the most important provisions of the family that most nations have adopted include the gender equality, sexual reproduction, inheritance, and domestic violence. With the family policy spreading to other parts of the world, several nations have embraced it by changing their marriage and family Acts to accommodate its provisions. However, several nations have used the gender and equal rights to promote same-sex activities and marriages for their citizens (Cahn, 2013). In Australia, there have been deliberate attempts to promote the use of mediation in addressing the disputes of divorce among same-sex marriage through the amendment bill to their family law Act. However, the enacted Act has received much opposition.

In essence, a family policy was seen as a state intervention into the affairs of family life that were aimed at promoting the well-being of the family through ensuring equal treatment of spouses, equal distribution of roles, and proper raising of children among others. The Family Act of 1975 has been instrumental in the promotion of family values aimed at raising a healthy family through settling of disputes of inheritance, negligence, and assisting in promoting the rights of the children. Apart from United States, Fine & Harvey (2013) suggest that there is still inadequate acceptance of gay relationships in most societies. Where such is the case, negotiation becomes a highly complex process since it lacks the basis in law and society. For an effective process, the society must be ready to accept all the aspects connected to the same sex relationships.

Proponents of same-sex marriages argue that equality embraces a form of choice and there should be no interference by the government in the choices one makes, including marrying from the same sex. Adaptation of Marriage Equality Law at the federal government level may be due to the declaration by the Supreme Court that the law is constitutional or when the parliament votes for it otherwise, it is the prerogative of the individual states to determine the status it can accord the law and those who have to formalize their relationships (Cahn, 2013). With the equal marriage rights bill being voted down in September 2012 by the Australian Parliament, there is a need to consider its provisions. Although all states have already endorsed the same-sex relationships, proponents’ of equality declared thereafter that with time and enough pressure towards the process, the marriage equality would gain support. In essence, it means that the aspirations of the advocates for equality will not end soon.

It is worth noting that some states have endorsed same-sex marriages in Australia, but the federal government has not incorporated the law in its constitution. According to Wahlert & Fiester (2012), with its legislation, there will be freedom of movement to all parts of the nation irrespective of the marriage affiliations. The same applies to the United States and other countries where same-sex marriages have been accepted. Until such a milestone is achieved, there will remain a challenge in dealing with the problems arising at whatever point in the relationship, especially in the event of divorce where children are involved.

With the advantages of mediations, same-sex marriages are going to blossom in the future. In fact, this is mainly due to the inevitable social changes that are ever constant in the society (Cahn, 2013). The hyped advocacy for the rights of same-sex partners is also helping to cement the gay and lesbian relationships. It has given the same sex marriage the legal and moral support that it needs to blossom. Indeed, it implies that mediation in the same-sex marriage is headed to being a common tradition in the future. The same sex couple will have gained a wide acceptance, thus making it part of the society’s culture. Same marriage advocacy argues that no one should be denied a chance to enjoy his or her sexual life with a person of his or her choice. In essence, consent is important in any form of sexual relationship, thus the need to respect people who have consented to staying together as a man and wife despite their sex.


Major changes have occurred in the social and legal realms as far as same-sex couples are concerned. There is a general recognition of same-sex marriage as legal rights and obligations of the couples. However, there are still limitations regarding the legal resolutions of conflicts affecting the same sex couples. The reality on the ground is that the legal changes have not yet affected the mechanisms for dealing with conflicts relating to this new phenomenon. Challenges are still evident in the efforts to come up with effective mechanisms for resolving conflicts, including mediation. Such is evident even considering the major conflicts that abound in such families and relationships. Thus, it is time to ensure that the new alterations in law are in line with changes in the legal and social mechanisms for navigating the complexity of conflicts between same-sex couples. The law must come with negotiation mechanisms bearing in mind the unique nature of the gay couples as opposed to heterosexual ones.

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