Alternative Dispute Resolutions Essay, Research Paper
“The family has traditionally been viewed as the most important institution in America, but statistics show that approximately 50% of all marriages now end in divorce.” Unfortunately divorce has become a common occurrence in life today. Divorce litigation has soured over the years and continues to clog court dockets throughout the country. Given the tremendous demand for divorce settlements a need for alternative actions besides litigation is necessary not only for the couple’s but for the court system as well. Alternative Dispute Resolution is an area that has and can continue to help conquer this out of control court congestion in the instances of divorce. There are various forms of Dispute Resolution such as mediation, arbitration, and negotiation that are available for divorce settlements. However, this paper will be devoted to the most commonly used Alternative Dispute Resolution technique, mediation in the area of divorce. “Generally mediation is defined as an intervention in dispute negotiation by a trained, neutral third party with the purpose of assisting the parties to reach their own solutions.” Divorce mediation is only slightly different in that divorce mediation is: ” an attempt at mutual problem solving in which couples try to reach agreement on all of the issues in the primary areas of dispute in a divorce: property settlement, child custody and support, and spousal maintenance.” Divorce mediation is a technique that should be encouraged if not mandated by the judicial system. The advantages of divorce mediation clearly outweighs its problems as will be seen later in this paper. “Furthermore, given the enormous backlog of cases, adjudicated divorce is simply not practical. So long as the incidence of divorce, together with other litigation, continues to exceed the capacity of our court system, the legal profession should be motivated to continue its efforts to fashion a cure.” Mediation has not been readily used in the past, however, it is gaining momentum and availability throughout the country. This is clearly evident in the area of divorce mediation. Divorce mediation is undoubtedly one of the fastest growing areas of Alternative Dispute Resolution. However, many consider divorce mediation the least understood technique of A.D.R. This may be because people do not understand what mediation is and how beneficial it can be to both sides of a conflict. “Fifteen years ago, mediation practitioners spent more time trying to explain what mediation was than actually mediating.” Hopefully this has changed over the years as people begin to keep an open mind to new alternatives rather than litigation. Divorce mediation has many advantages not only to the parties but to the public and its court system as well. Divorce mediation is efficient, cost effective, convenient, voluntary and confidential. In addition mediation in divorce has strong advantages for the parties children. Mediation can be a way of achieving a healthy amicable divorce due to the compromising settlement developed by the parties themselves. This A.D.R. technique reduces court congestion, reduces the expenses for both parties and enables them to minimize post dissolution conflict by allowing the individuals to decide the terms of their individual divorce. In addition divorce mediation can reduce the hostility between the parties which should reduce the chances of re-litigating issues at a later time. As this papers discusses these above advantages in more detail, it should become evident how important and useful divorce mediation is and how it should be implemented in most divorce procedures. “If divorce is the proper alternative for two individuals, they should be spared as much pain as possible.” The pain that can come with divorce may be avoided or lessened if divorce negotiation is involved. “By the 1980’s this country’s skyrocketing divorce rate has been identified as the greatest single source of the bulge in litigation filings. This drastic increase placed a tremendous burden on the court, in some urban areas creating delays of as much as three years in obtaining a divorce.” Normally, this lengthy drawn out procedure can leave both parties emotionally and financially devastated. If divorce mediation is implemented in divorce actions, couples could determine together what their needs are and hopefully they will be able to reach a settlement that is less painful to themselves. In addition to court congestion, divorce mediation has proven to be less harmful on the welfare and best interests of the children involved in the dispute. “There is a significant body of evidence to suggest that the more pro-rated the conflict in the judicial process, the greater harm to the children.” An ugly divorce situation in which the mother and father are at odds can leave the children left unsure and stuck in the middle of the controversy. The children may be forced to testify in court which could in turn have negative affects on the child and his or her relationship with his or her parents. If the parents follow the divorce mediation road, the process may be less traumatic on the child. “One of the arguments in favor of mediated divorce settlements is that the process reduces the traumatic effects of divorce especially for the children.” It has been shown that a child’s future relationship with each parent is better ensured, and his or her existing relationship less damaged if a negotiated settlement is agreed upon rather than a court enforced decision. “By educating spouses about each other’s needs, proving a personalized avenue to dispute resolution, and being future-oriented, mediator provides help in the present and in the future by enabling couples to work together better, which also results in the enhanced adjustment of the kids.” Voluntary agreements made during a divorce mediation tend to have a higher rate of compliance than court ordered settlements. Agreement with child support orders has been proven to be 50 percent higher when achieved through voluntary agreements like divorce mediation rather than when it is court ordered. In another study done in Denver, Colorado, showed that 56 percent of successful mediation clients indicated no serious problems within six months of divorce. This is because the individuals themselves created together, with the help of the mediator, what they believed to be a fair, agreeable settlement. When a court imposes a plan, normally one party feels as though they were taken advantage of or did not receive fair treatment. This will not happen in a voluntary settlement reached through a divorce mediation. However, it is important to note that every negotiated divorce settlement must first be approved by the court system. This is strongly evident in settlements concerning child custody matters. “Implicit in the court’s acceptance of the parties’ agreement is its determination that the arrangement is in the child’s best interests.” For those who believe divorce mediation is impractical and not in the best interest of any party, fails to acknowledge the fact that the court has the authority to decide whether an agreement between parties is fair and just. Therefore if an agreement was so one sided or blatantly unfair to one side, the court could strike down the matter agreed upon. As stated before, divorce mediation is more efficient, cost effective and convenient than the litigation process. Normally a divorce may and could take up to two years while a resolution made during negotiation could be settled within four to ten weeks. In addition, mediation in divorce can be much more cost effective. For example an average negotiation could run anywhere from $2,000 to $4,000 when an actual litigated divorce could exceed as much as $50,000. Sometimes the cost for a litigated divorce is more than the worth of the parties themselves. Divorce mediation is also convenient, voluntary, and confidential. Divorce mediation is convinient because the parties and the mediator can schedule convienient times to begin a settlement procedure where as court dates may not cater to all of the parties needs. In addition, mediation is voluntary in that if the parties fail to agree they are still entitled to litigate this matter in court. ” [P]arties can object to mediation or can agree to a standard version of mediation where the case will proceed to trial if both parities do not accept the mediator’s recommendation.” Divorce mediation is also confidential, this can put both parties at ease in that whatever is disclosed in negotiation will not be brought out at trial if an agreement cannot be reached. Finally divorce mediation can be a healthy way to attain a divorce because the agreement created by the parties is an individualized, creative agreement that represents the needs of both parties fairly. Divorce mediation can attend to the emotional needs of the individual parties where as a court system cannot.
While there are many strong arguments for divorce mediation rather than litigation, many opposed to this technique have not been persuaded. They believe some divorce situations cannot be mediated because the couples will only fight and resolve nothing, thus becoming a waste of time. In addition opponents of mediation feel the bargaining power between the two spouses is unequal. The weaker spouse will concede and be taken advantage of. They also believe agreements are unfairly signed when the parties should have sought independent legal counsel. In addition, opponents believe the discovery to this type of mediation is not sufficient and could fail to disclose important issues. Finally, skeptics feel the mediator cannot be fair and impartial and may be crossing ethical lines by allowing particular agreements to go through. However valid these arguments may be, they can be easily overcome and explained showing that mediation is a proper procedure to be used in divorce situations. Parties who do have such an intense hatred for one another may not be the right parties to a mediation process. However, that does not mean those divorcing spouses who just disagree cannot sit down and “fight it out” in the presence of a mediator in order to find a fair resolution of the matter. Parties who believe they will never agree with there future ex-spouses could be surprised and may eventually come up with an amicable settlement. Opponents to divorce mediation may feel that the parties come to the table with unequal bargaining power. “The criticism surrounding family mediator centers primarily on perceived negative effects to women in general, to women who are victims of domestic violence particularly, and the adverse effects associated wit madatory mediation.” In some situations women and men do have unequal power with the marriage, this could be for various reasons. However, the mediator in a divorce mediation usually recognizes this unequal playing field and can try to correct this unfair advantage within the process. “The mediator, thus, must be very aware of the past history of the participants so that they can create a level playing field and help bring about a fair and reasonable agreement.” Although this can normally be effective in divorce mediation, areas of domestic violence in a relationship is an altogether different matter. If a domestic violence situation is involved in a future divorce situation, divorce mediation is not the answer. The spouse that has been abused may be too weak or scared to work for a fair settlement. She may be submissive and give in to everything the other spouse requests. Only the abused spouse herself knows if the deal is fair or not. In this situation the battered spouse would probably fair better in a litigation setting with counsel rather than on her own against her abuser. In cases that do not involve domestic violence, opponents still argue that women are on unequal bargaining grounds with their husbands. Many believe ” that men have a higher level of income, and are usually granted a higher status in society than women.” “An additional claim raised is that women’s innate weaknesses cause them to accept undesirable proposals in mediation.” Therefore those opposed to mediation believe in order for negotiation mediation to work a divorcing couple’s bargaining power must be relatively equal. This is unnecessary because a trained negotiator, while still acting impartial and as a neutral party can try to rectify this unequal power. The trained mediator, by involving both parties in the process in a balanced way, can help protect both parties. The mediator through suggestions and advice can help the parties stay within a reasonable, fair agreement. The mediator through his suggestions will be able to show that” the mediator can assist the parties in formulating their own standards of fairness and encourage them to re-negotiate a settlement based on their personal values and priorities.” In a divorce negotiation the weaker spouse may be more persuaded by the advice of the mediator to stand his or her ground to reach a fair settlement, for themselves. Next, the opposition contends that divorce mediation’s discovery is too limited and unfair. In addition opponents believe that independent counsel is not used enough before a settlement is agreed upon. These issues can easily be addressed. First of all discovery is limited in mediation for a reason. This is because mediation occurs soon after a divorce proceeding is undertaken and there is not always enough time to get all of the pertinent documents. The solution to this is that if either party believes there is information that is not presented for this negotiation they could have the mediator postpone the proceeding and try to obtain this material for the next meeting. The reason for this limited discovery is to keep the mediator as cost effective and efficient as possible. However, if the absence of certain documents would hinder a party, a mediator would try to obtain this material in order to make the mediation remain on a fair, level playing field. In addition, mediators normally acknowledge the need for the parties to seek independent counsel. “In divorce mediation, a neutral facilitator meets with divorcing parties to assist them in managing and organizing a settlement.” Normally attorneys are not present during these negotiations. However, this does not mean that independent counsel cannot be sought. In fact, many if not most mediator’s encourage both parties to seek independent counsel’s advice before signing a settlement agreement. This way each party can make sure their needs and interests are addressed before they make any binding agreement. By advising both parties to seek independent counsel, the mediator shows his ability to be impartial. “A mediator is by definition a neutral party, and is expected to remain impartial.” It is important to note that ” the appearance of impartiality is vital since a mediator’s ability to aid a couple will likely be compromised if either spouse perceive the mediator to be partial.” By advising the parties to go outside for legal advice before signing an agreement, this shows that the mediator is acting professionally and impartial. Finally opponents to divorce mediation state that there are ethical considerations that face a legal mediator. They believe there may be conflicts of interests, loyalty, confidentiality, solicitation, and the appearance of impropriety. However, this will not be a problem because most lawyers who act as divorce mediators know of these ethical concerns and follow these four standard guidelines or rules. The lawyer must inform the parties that: 1). The lawyer/mediator represents neither party and both parties must consent to the mediator.2). The lawyer/mediator can only give legal advice in thepresence of both parties.3). The lawyer/mediator can draft an agreement, but should advise the parties to seek independent counsel.4). The lawyer/mediator may not represent either or both parties in a later legal proceeding. If these guidelines are followed opponents should not have a problem with probable ethical considerations that have arisen in the past. Although there are many more pros and cons of divorce mediation, some of the most prevalent and important issues have been addressed in this paper. “Mediation is not the solution to all of the problems of divorce or the defects in the adjudication process, yet it does present advantages with great potential.” In order to satisfy divorcing couples as well as clear up the already overloaded court system, divorce mediation is a start in the right direction. Mediation in a divorce setting can become a “win/win” situation for both parties. In this type of mediation, ” the parties are more likely to achieve an interest-based solution that optimizes everyone’s satisfaction because parties are encouraged to develop a creative solution that neither one of them would have come up with on his/her own.” This technique may leave the parties feeling confident that they each reached a fair and amicable settlement whereas in court, one party usually comes out standing taller than the other. “Ultimately, the primary goal of mediation process is to reach through negotiation a mutually acceptable agreement which will be fair to both parties.” If the mediation process is followed correctly that is exactly what will result. The clear advantages of mediation and how it affects the parties involved makes it evident that this type of alternative dispute resolution should be used instead of the unpredictable court system.