Family Matters No. 28 - April 1991

Mediating divorce: An alternative to litigation

Ilene Wolcott

Abstract

The focus of this article is mediation in divorce situations where couples are arguing or unable to reach agreement and make decisions about property, maintenance and custody/ access issues. Aims of mediation are set out, and effectiveness and cost-effectiveness of mediation are discussed.

In the last edition of Family Matters, Ilene Wolcott, AIFS Fellow, reported on the role of mediation in parent - adolescent dispute resolution. This article continues that theme and looks at mediation services available to couples involved in divorce disputes in Australia.

Until the past decade, the main avenue to resolving the conflicts and consequences of divorce related to property, custody - access and maintenance issues has been the legal system. The adversarial legal system is thought, in many cases, to exacerbate these conflicts. Mediation is considered an alternative way to resolve disputes and to reduce conflict.

The focus of this discussion will be on mediation in divorce situations where couples are arguing or unable to reach agreement and make decisions about property, maintenance and custody - access issues.

Family/Divorce Mediation

The aim of mediation is 'to assist parties (adults) to resolve specific disputes which may otherwise result in litigation through the Family Court' (Attorney-General's Department 1988). The Commonwealth Attorney-General's Department has allocated $1.105 million in the 1990-91 budget for family mediation with an emphasis on 'couple mediation'.

Currently, 11 organisations are funded by the Attorney- General's Department to provide family/couple mediation services. These agencies, with the addition of the Family Mediation Centre in Noble Park, Victoria, are all approved marriage counselling agencies under the Attorney-General's Department.

The Noble Park Centre, established in 1985, was one of the first mediation programs funded by the Commonwealth Attorney-General. It is committed to the community mediation model of intervention and uses trained mediators from a variety of backgrounds in this approach. Legal and financial information sessions are part of the mediation process. Two full- time and one part-time mediator complement 36 sessional mediators. Approximately 72 mediation sessions were conducted in 1989.

The Marriage Guidance Council of Victoria's Family Mediation Service was established in 1984 and received Commonwealth funding in 1988. In each of the past two years 105 couples have participated in mediation. The Family Mediation Services of the Marriage Guidance Councils of South Australia, Queensland and West Australia began operations more recently, either during 1989 or 1990. Although some of these agencies have been seeing clients, others have had to concentrate on training potential mediators. Since 1989 a cooperative Family Mediation Service has been run by the Marriage Guidance Council of New South Wales, Centrecare (Catholic Family Welfare) and the Family Court.

UNIFAM NSW began family mediation sessions in 1987 and conducts approximately eight sessions a week. Over 48 sessional mediators with professional and community backgrounds participate in the Family Mediation Centre program.

Mediation services are designed to assist separating or divorcing couples settle issues associated with child custody and access, living arrangements, property distribution and spouse and child maintenance. Mediators are men and women with family law or family and relationship counselling experience. On average, couples attend two to four sessions of one-and-a-half to two hour's duration. All centres offer sessions during evenings and, in many cases, at weekends.

All centres handle some cases that do not continue on to mediation; initial intake or contact sessions may result in referral to counselling or other services, and sometimes the information received or issues discussed in this first session may be adequate to resolve the presenting problem.

The average fee is $50 based on a sliding scale fee structure. In addition to funding from the Attorney- General's Department, the South Australian Legal Services Commission funds mediation for referred clients, and the Legal Aid Commissions of Victoria and New South Wales finance mediation for couples involved in maintenance disputes.

Training for mediators takes several forms. Some agencies such as Noble Park and UNIFAM conduct their own training programs and offer this service to other organisations. A number of agencies have brought out alternative conflict resolution consultants, such as CDR Associates (Communication, Decisions, Results) from America, to run training sessions for potential mediators and staff of agencies have participated in overseas training programs. In addition to knowledge of the mediation process and relevant skills in counselling, conflict resolution and communication, training usually includes sessions on family law and court practices, family dynamics and human development. The TAFE college in New South Wales provides initial training for Community Justice Centre mediators, a course in conflict resolution has been established at Macquarie University, and Bond University Law School has a Centre for Dispute Resolution.

Although associated with the litigation process, the Family Court of Australia has encouraged alternate dispute resolution in the form of conciliation services. Registrars and Court Counsellors are available to assist parties to resolve their disputes over property, access and custody themselves rather than having decisions imposed by the Judge. It has been noted, however, that recourse to the Court's conciliation service often comes after litigation has commenced. The Chief Judge of the Family Court, Mr Justice Nicholson, announced in July 1990 that the Family Court would develop a mediation service as an alternative to litigation (Innes, The Age, June 1990).

According to the coordinators of services now operating, the process of divorce mediation includes: pre-mediation assessment and provision of information or referral to other services such as counselling if appropriate; identifying and clarifying matters of concern and areas of agreement and disagreement; reviewing the individual needs and resources of each family member; and developing plans which meet everyone's needs as fairly as possible.

The mediator tries to redress power imbalances by pointing out areas where each partner is an expert, for example, the wife may know more about the children and running the household, the husband about business. Either partner may be encouraged to find out more about his or her legal rights and responsibilities, and economic resources (the value of a house or car, for example, or the cost of children's clothes). The mediator may ask for information to be brought to the session.

An agreement to mediate is often signed by both parties. A successful outcome for mediation is usually a written agreement between the partners, drafted by the mediator and signed by the parties. Although the agreement is not legal, it can be used as a basis for a legal agreement. It is usually quite detailed and covers all the issues raised. Ricci (1980) and Haynes (1981) emphasise that the document should be in language easily understood by all parties; in appropriate cases, Ricci recommends giving the written agreement to children to reassure them about what will happen.

Effectiveness of Mediation

Mediation programs currently operating in Australia have not yet reported the results of any long-term evaluations of their services. Overseas research on the effectiveness of couple mediation has generally found it to be an effective and satisfying means for resolving disputes outside the litigation process. Benefits attributed to successful mediation reported in the literature include the avoidance of financial and emotional costs of litigation, the opportunity to develop or maintain a constructive parental relationship, and a belief that agreements are workable and fair under the existing circumstances (Emery and Wyer 1987, Pearson and Thoennes 1984).

Positive reports are tempered by reference to the appropriateness of mediation for different situations and the selective screening of applicants (Roehl and Cook 1985). Several American studies have reported refusal rates of 30- -50 per cent where disputants were court-referred for participation in voluntary mediation programs (Pearson and Thoennes 1984). Australian centres indicate that in approximately 40 per cent of cases one or the other partner declines to participate or withdraws.

CDR Associates (1989) feels mediation is most likely to succeed where: the parties do not have a long history of litigation; there is some on-going relationship; the couple has a degree of psychological detachment; there are adequate resources to negotiate a compromise; hostility is not overwhelming; and there is acceptance of intervention by a third party.

Mediation may not be appropriate for all situations. Practitioners and theorists in the field (Haynes 1981, Ricci 1980, CDR Associates 1989) consider mediation is inappropriate or less likely to be successful when: the parties are out of control physically, emotionally or psychologically; there is substantial physical or sexual abuse; drug or alcohol addiction is present; the power imbalance between the parties is pervasive and not amenable to the mediation process; parents are unable to make decisions in the children's best interests; mediation is used to gain information that will be used to manipulate, control, harm or disadvantage the other party; and extreme religious beliefs are held by one party.

Once couples are accepted into mediation, studies indicate that between a half and three-quarters are able to resolve their disputes without resort to litigation (Emery and Wyer 1987). Several Australian centres report that agreement is reached in over 80 per cent of cases where mediation sessions are actually held. Couples who are able to reach an agreement to mediate may, of course, already be more inclined towards successful outcomes. For some mediators, temporary agreements or agreements on some but not all issues are considered a successful outcome (Thoennes and Pearson 1985).

In comparison to adversarial and unsuccessful mediation cases in divorce and child custody disputes, Pearson and Thoennes (1984) found those who had successful results from mediation were more likely to: be satisfied with the outcomes of decrees and court orders; perceive outcomes as being fairer; feel more confident of working out problems without further litigation; report greater spouse compliance with orders; have more generous visitation arrangements; be on better terms with ex-spouses.

Fathers in one United States study reported more satisfaction than mothers with the outcomes of mediation compared to court hearings (Emery and Wyer 1987). The mediation process is thought to give fathers more leverage in custody options than the courts which are perceived to favour mothers. In cases where agreements were reached through mediation rather than adversarial approaches, access and custody arrangements were more liberal.

Some studies find litigation re-occurs less frequently among mediation clients while other studies conclude there are no differences in later litigation rates between mediated and adversarial cases (Pearson and Thoennes 1984). Yates (1990) has suggested that where mediation is more aligned with counselling, clients are more likely to be satisfied with the outcome.

An evaluation of family conciliation in England and Wales (Simpson, Carlyon, McCarthy and Walker 1990) expressed concern with the level of confusion on the part of clients about the objectives of conciliation, particularly in relation to whether there would be pressure towards achieving reconciliation. In this study clients were also unsure about the meaning of legal terms associated with custody and access. These results were more pronounced in clients of court-based services.

Cost-Effectiveness

Little evaluation has been conducted on the cost- effectiveness of couple mediation. Since clients who use mediation are advised to seek legal advice and must still have their agreements made legally binding, there are still legal fees to be paid. Pearson and Thoennes (1984) indicate there were modest savings in legal fees for clients who had successfully mediated.

Lawyers, of course, can encourage or discourage the use of mediation through their acceptance of the process and the agreements reached in mediation. They can prolong the litigation process by insisting a client 'can do better' than the agreement or they can reinforce the benefits of compromise over a win-lose solution. An increasing number of lawyers in Australia are participating in training and education about mediation (Siegal 1990).

A review of child custody and divorce conciliation in England and Wales concluded that court-based and independent conciliation services, 'did not support the claim that conciliation more than pays for itself in direct economic terms or that it recoups a substantial proportion of its cost of provisions (Yates 1990). According to the author, possible cost savings associated with greater wellbeing of the couple and their children due to a less stressful way of solving disputes were not taken into account.

Maxwell (1989) concludes from a study of court counselling in New Zealand that counselling conducted by court counsellors and practitioners recruited from the community was, under present structures, less expensive than either court based mediation or litigation. Most evaluations conclude that mediation is less expensive than prolonged litigation (CDR Associates 1989).

Issues

A number of fundamental questions have been raised about the status and process of mediation. Which model or style of intervention is most effective? How should services be funded and at what cost to clients? Which couples would most benefit from the mediation approach? Where should services be located and under whose jurisdiction? What qualifications and training are necessary in a mediator?

The Family Law Council of Australia's Family Mediation Committee (1990) has prepared a discussion paper which addresses these major issues. The paper highlights the continuing confusion and territorial debates around what is meant by the term mediation as it is provided by a variety of practitioners.

One of the most contentious points discussed was who should be allowed to practise as a mediator. For example, although it supports the concept of mediation, the Law Institute of Victoria has expressed concern over lay mediators without legal background practising in the family law area. These concerns focus on whether 'the best interests' of clients in terms of their legal rights will be met. The Council's concerns focus on the damage that could be caused by incompetent mediators. The Council's preliminary recommendation is that family mediators should receive uniform basic training which is incorporated into a post- qualification diploma course in mediation.

Conclusion

The development of a range of services to assist families with the consequences of separation and divorce is to be encouraged. While mediation in divorce disputes may take place in a variety of settings, be conducted by practitioners of different professional backgrounds and training, and include a number of techniques and approaches, as a concept it has the potential to be a valuable resource for resolving some aspects of family conflict.

References

  • Attorney-General's Department (1988), 'Guidelines for organisations seeking approval in relation to the conduct of programs of marriage counselling, family mediation or marriage education', Canberra.
  • CDR Associates (1989), Mediation Training Manual, Centre for Dispute Resolution, Boulder, Colorado.
  • Emery, R. and Wyer, M. (1987), 'Child custody mediation and litigation: an experimental evaluation of the experience of parents', Journal of Consulting and Clinical Psychology, Vol.55, No.2.
  • Family Law Council (1990), 'Final draft discussion paper on family mediation', November.
  • Haynes, J. (1981), Divorce Mediation: A Practical Guide for Therapists and Counsellors, Springer, New York.
  • Maxwell, G. (1989), Family Court Counselling Services and the Changing New Zealand Family, New Zealand Department of Justice, Wellington.
  • Pearson, J. and Thoennes, N. (1984), 'Mediating and litigating custody disputes: a longitudinal evaluation', Family Law Quarterly, Vol.17, No.4.
  • Ricci, I. (1980), Mom's House, Dad's House, Macmillan, New York.
  • Roehl, J. and Cook R. (1985), 'Issues in mediation: rhetoric and reality revisited', Journal of Social Issues, Vol.41, No.2.
  • Siegel, R. (1990), 'ADR in family law - a guide for the perplexed', Law Institute Journal, Vol.64 No.7, July.
  • Simpson, B., Carlyon, J., McCarthy, P. and Walker, J. C. (1990), 'Client responses to family conciliation: achieving clarity in the midst of confusion', British Journal of Social Work, Vol.2.
  • Thoennes, N. and Pearson, J. (1985), 'Predicting outcomes in divorce mediation: the influence of people and process', Journal of Social Issues, Vol.41, No.2.
  • Yates, C. (1990), 'The conciliation project report: a study of non-judicial dispute resolution in family cases', The Journal of Social Welfare Law, No.1.
  • Ilene Wolcott's discussion of the philosophy and background of mediation, and its application to parent-adolescent disputes, entitled 'Family Conflict: Mediating Differences and Disputes Within Families', is published in Family Matters No.27, November 1990, pp.31-34.