Court-sponsored
mediation is prevalent today in the United States and in foreign
countries, including Canada and England. In some states, only two
percent of filed cases are resolved by adjudication. Many cases are
sent to mediation, and approximately seventy percent settle at the
mediation conference. Most of the remaining thirty percent settle
before trial, often as the result of the process begun in mediation.
For example, the number of reported mediated cases in Florida increased
from 34,000 in 1989 to almost 50,000 in 1991. This movement toward
mediation reflects a relatively long-term trend in Florida's judicial
system.
In
mediation, a neutral third person encourages and facilitates the
resolution of disputes. The mediator has no coercive power or authority
to decide on behalf of the parties, or even to require the parties to
agree. Mediation is a process of conflict resolution that returns to
the parties the responsibility for making decisions. The goals of
mediation include: reducing the court's docket, reducing the demand on
judicial resources, accelerating the rate of case resolution, reducing
the cost of resolving conflicts, increasing the litigants' satisfaction
with the court system, and improving relationships between disputing
parties.
Mediation is
especially helpful in family disputes because of the unique nature of
family law. Family matters involve not only the law and facts, but also
feelings. An increase in the number of divorces and of children born
outside marriage has caused states to seek methods other than
litigation to solve family disputes involving child visitation, as well
as financial matters. Mediation is one such method.
Mediation is
an attractive alternative in family disputes, because it empowers the
parties to devise agreements that meet their specific needs. Unlike the
adjudicatory process, the emphasis in mediation is placed on
establishing a workable solution, rather than on determining who is
right or wrong. Decisions are made by the parties, not delegated to a
judge. Mediation of divorce disputes began because of increasing court
costs, delay, and escalation of conflict caused by dissatisfaction with
the traditional method of solving family matters through litigation. To
address this dissatisfaction, lawyers and therapists offered to help
their clients settle cases in a non-adversarial manner.
The
mediation process helps reduce parties' hostility and children's trauma
from the divorce process. This is particularly significant when the
parties are parents and will remain in contact after the marital
relationship ends. The process encourages the parties to work together,
isolate the issues, and learn through cooperation. Mediation produces
stable agreements that are more likely to inspire long-term compliance
by the parties. In addition, even when the parties do not reach
agreement during the mediation process, research indicates that family
cases often settle prior to trial as a result of issues discussed in
mediation.
Family
mediation is available through public and private forums. Some states
have enacted statutes providing either mandatory or discretionary
mediation of family matters. Additionally, some state courts have
instituted mediation by court policy without statutory guidelines. At
least thirty-four states and the District of Columbia have some type of
court-based mediation program for domestic relations cases. State
programs are used to resolve custody, child support, and other
financial issues, such as alimony and property distribution.
Traditionally,
mediation has been a voluntary process. Recently, some jurisdictions
have adopted mandatory mediation, requiring the parties to mediate.
Given the concept of self-determination inherent in mediation,
mandatory mediation appears to be a contradiction in terms. However,
these statutes merely mandate the mediation process, not an agreement
by the parties. In 1981, California became the first state to require
mandatory mediation. Now, many jurisdictions have similar statutes.
Regardless of whether a statute requires mediation or authorizes
mediation, once a court orders participation in the mediation process,
the parties must mediate unless a statute provides for exemption.
Not all
states mandating mediation provide an exemption from mediation in the
face of domestic violence. However, exemption from family mediation is
necessary because spousal abuse is pervasive in our society. Abuse is
estimated to occur in thirty percent of marriages. Most victims of
abuse are women; only five percent of reported spouse abuse victims are
men. Mediation in domestic relations cases raises concerns about
safety, because studies find more abuse after mediation sessions than
after trials. Mediation also may be unsuccessful because of an
imbalance of power between the parties, as well as a limited capacity
of the parties to advocate effectively for themselves.
Some state
legislatures have responded to the need to exclude abused parties from
mediation. New Mexico enacted the first exemption statute, and many
states followed. Recently, California amended its statute to provide an
exemption for domestic violence.
The wording
of these exemptions and the degree of evidence of "domestic violence"
required to waive mediation differ among the states. Depending on the
jurisdiction, parties are exempt from mediation when either party has
been the victim of: "domestic violence," "physical abuse," "emotional
abuse," "emotional distress," "spousal abuse," "sexual abuse,"
"domestic abuse," "family violence," "drug or alcohol abuse," or when
there is "good cause" which includes allegations of alcoholism, drug
abuse, or severe psychological, psychiatric, or emotional problems.
New Hampshire requires exemption when either party asserts abuse has
occurred "unless the alleged victim . . . requests mediation, and the
mediator is made aware of the alleged abuse." Ohio permits the
court to consider abuse, but allows mediation if the court finds it
appropriate. In Illinois, the court may order mediation for visitation
disputes, except where there is evidence of domestic violence. North
Carolina courts may waive mediation in cases involving domestic
violence. North Carolina provides a mediation waiver for "good cause,"
including allegations of abuse and neglect of a minor child,
alcoholism, and drug abuse. Utah provides an exemption from mediation
where mediation "would cause undue hardship to or threaten the mental
or physical health or safety of either of the parties or a child or
children of the parties." Maine's child-custody statute requires the
mediator to consider any history of domestic abuse. Florida provides a
mediation exemption if there is a "significant history of domestic
abuse which would compromise the mediation process."