Family mediation myths and facts

Abstract

Because of the many problems associated with litigating family disputes, mediation has been proposed as an alternative. Its proponents, claiming wide-ranging benefits for both the litigants and the legal system, have had tremendous success in advancing mediation in social policy. Because of the significant growth in the use of mediation across the country, this dissertation critically assesses the validity of its claimed benefits. The dissertation first considers the role of pro se representation and its potential consequences for evaluating mediation because of the increased use of pro se representation in divorce cases. The dissertation then describes mediation and the range of mediation practices that exists in this country. Because mediation varies considerably program to program and jurisdiction to jurisdiction, it is difficult to draw definitive conclusions across programs or jurisdictions. Therefore, another approach is used to assess the rationality of mediation laws--namely, evaluating the validity of the behavioral assumptions (e.g., presumed benefits) underlying these laws (Sales, 1983). The dissertation then articulates the goals attributed to the mediation process, litigants, and the legal system, identifies the behavioral assumptions underlying those goals, and critically reviews the social science data and theory that have directly tested the validity of the goals and assumptions or are indirectly relevant to the analysis. It is argued that the goals of divorce mediation may have been and may be unrealistic. The dissertation concludes by discussing the limits of current findings and suggesting future research to address these concerns.