NCJ Number
92171
Date Published
1982
Length
17 pages
Annotation
This article argues for an alternative to adversarial litigation of divorce cases in the form of mediation and proposes a model that defines the social and ethical goals of a mediation system for deciding the legal issues involved in separation and divorce.
Abstract
The need for such an alternative arises from the unsatisfactory way in which the principles and practices of adversary law, when applied to divorce settlements, encourage anger and contention among the parties, causing emotional stress, harm to family relationships, disruption of coparenting, needless expenditures of money and time, lack of flexibility and satisfaction, and excessive institutional intrusion into private decisions. Goals of the alternative system include fair and practical settlement, minimal disruption of family relationships, lower costs for professional services, quick decisionmaking, participation of both parties in their own decisionmaking, and balanced power between the contestants to enableemaximum cooperation. Mediation should be performed by lawyers who do not mix mediation and law practice in the same case, explain the differences between mediation and representation to potential clients, provide legal information in lieu of legal advice, remain as neutral as possible, avoid secret communications and pressure tactics, and ensure the confidentiality of mediation sessions. The mediator should respect the autonomy of the couple in controlling the substance of the solution and in having access to independent legal counsel. The mediator should also ensure that full and complete disclosure of property and income is made by both parties, that neither party abuses the mediation process, and that the agreement is referred for drafting to an independent attorney. Lawyers in family practice should seek to acquire the skills needed for mediation, which include understanding emotional patterns in families, conflict resolution, and mediation strategies.