Divorce Mediation as an Alternative to Litigation: Avoid Legal Battles and Help Your Children

By: Steven A. Lazarus, Psy.D., L.P.C.

Divorce mediation, a form of third-party intervention, has become an increasingly popular alternative over a traditional divorce that is settled through both parties use of lawyers. The nature of most traditional divorces leads the two parties toward an adversarial approach, with both people arguing over assets, future financial arrangements, and children. From a discussion with a number of clients enrolled in a divorce group run by this author, conflicts often take the form of one person "winning" while the other feels they are "losing" with each concession made. The litigation of some of these divorces can go on for quite some time, with neither party feeling satisfied, respective lawyers encouraging their client to ask for more, and much of the couples money going to their lawyers. Often, the best interest of the children are not fully taken into account, nor is the emotional impact of the marital conflict on each adult's ability to make decisions regarding their children.

This paper will briefly review the strengths and limitations of using a divorce mediation procedure as an alternative to traditional divorce proceedings. Next, special concerns such as how children should affect the divorce proceedings as well as cultural differences will be addressed. Finally, suggestions for which types of couples and families might best benefit from mediation will be discussed.

Divorce mediation represents an alternative procedure, "one that will bring the couple to the same conclusion, but without exacting from them the cost, in terms of time, money, and emotional injury, that has invariably been its price." (Marlow and Sauber, 1990). Beck and Biank (1997a) describe this process as one that "empowers and supports" the divorcing couple both "during and after the divorce." (p.179).

Ellis and Stuckless (1996) indicated that marital mediators have criticized lawyer negotiations due to increased conflicts, greater risk of a women being assaulted or harmed, and the increased time involved in lawyer negotiations as an increased stressor on the separating parents and their children. In addition, there is a greater chance of further litigation and the two parties not following through with the legal agreements after this type of proceeding.

Critics of divorce mediation point toward the neutral stance of the mediator as potentially causing "gender-based power imbalances on the agreements that separating women reach with their more powerful male partners." (Ellis and Stuckless, 1996, p. viii). Cohen et al. (1999a) were concerned with the divorcing parents of children, with their own "troubled psychological state" being fully able to make the best decisions for their children while the mediator remains impartial and neutral toward all parties. (Cohen et al. (1999a) p. 343).

Ethical guidelines in many of the mediator code of ethics define neutrality, fairness, justice, and impartiality as important aspects for the mediator to follow. However, when does the mediator's neutrality, in which the mediator is focused on "process rather than outcome" and has "little or no power over the parties" get in the way as parents of children may not be capable of making sensible decisions regarding their children's welfare? (Cohen et al. (1999a) p. 341).

Some studies showed that domestic violence was a factor in up to 50% of divorce situations. Showing up for a mediation session can lead to further risk of abuse if the couple carpools, has a shared waiting room, or if one person is verbally abusive to the other during the mediation. A careful evaluation of post divorce domestic violence and current safety factors is strongly suggested, as is providing a mediation setting that will be safe for all parties involved. (Pearson, J., 1997)

DeMayo (1996) discussed the increased potential for the mediator to have emotional reactions as the mediator engages in active listening from the perspective of intersubjectivity theory. As the mediator becomes in touch with his/her own "feelings, identifications, values, and needs" (p. 219) when listening to each client, there is a potential for these parts of the mediators emotional experience to influence his/her ability to make required decisions on a variety of complex issues. The author suggests that by being more aware of the potentially intense emotional responses, which may be inherent in divorce mediation, the mediator can continue to practice in an ethical manner. The following six steps were suggested:

  1. "A mediator must acknowledge the emotional biases and vulnerabilities that he or she brings to the mediation process."
  2. "A mediator should pay close attention to those situations I which he or she is experiencing widely divergent emotional responses to the two parties."
  3. "A mediator should attend to the level of emotional reaction he or she is experiencing in the mediation sessions."
  4. "A mediator may wish to attend to even subtle deviations in standard operation procedures"
  5. "A mediator should know that relying solely upon oneself to identify potential problems as they arise might be dangerous."
  6. "A mediator must acknowledge that despite one's best efforts, some mediations may be too emotionally provocative for one to proceed as the mediator."

(pp. 225-226)

The above article suggested that there may be some mediators who are more appropriate for some divorce mediations than others, and that part of acting in a professional and ethical manner requires the mediator to recognize his or her own limitations. Another area of mediation research revolves around cultural considerations, although much less research has been conducted in this area.

In continuing to look at the fallacy that one size fits all when it comes to mediation, Irving et al (1999) developed fifteen practice implications which may be viewed as standards of practice in ethically and competently work with Latino families. These suggestions may or may not generalize to other ethnic minority groups but it is certain that cultural differences should be taken into account in the mediators approach in order to best serve their clients. Below are some of the authors suggestions for items which are extremely important for the mediator to be aware of: A need for a detailed assessment, the personal involvement of the mediator, a respect for the hierarchy of the Latino family, and the use of Spanish or English. The authors concluded that many mediators have minimal training in conducting mediation with ethnic minorities and suggested that this could result in a substandard level of care.

Another area of interest in divorce mediation is the inclusion or exclusion of children in the mediation process. During divorce litigation, the courts and parents are more often appointing an independent child advocate to evaluate the child and make recommendations to the court. Gentry (1997) reviewed a number of articles that gave reasons to include or exclude children from mediation proceedings. She indicated that 77% of mediators surveyed in one study reported the inclusion to some extent of children during these proceedings. Another study cited by Gentry suggested including the parents in the final session of the mediation, during which time the parents should appear more "unified in their efforts to inform the children of the content of their agreement and in answering children's questions." (p. 311-312). Another author cited by Gentry discussed the interviewing of children separately from the parents and then revealing the child's insights and concerns for the parents to consider during the mediation. Little research has been conducted into this area.

However, like the Irving study above, Gentry suggested that in order to work with parents who have children, the mediator should have adequate training in child development or should consult with a person who specializes in this area, such as a child psychologist, before allowing a child to participate in mediation proceedings and in determining custody and visitation policies.

Beck and Biank (1997b) discussed three difficulties which may happen with children before, during and after a divorce. They suggested that due to the decreasing age of children when their parents get a divorce, an awareness of separation trauma is critical, or "the pathological consequences in the child who feels separated from a nurturing parent." (p. 66). The implication of this is for the mediator and parents to carefully consider the length of time that a young child will be separated from his or her primary caretaker. Beck and Biank go on to discuss that during the time of a divorce, parents are often focused on themselves more than on their children. At times, children can develop separation anxiety "as a result of continuous separations experienced by many children of divorce." (p. 70). Finally, the authors discussed the difficulties of a child of divorce to deal with frequent transitions and their sensitivity to their parent's emotional states. These difficulties can lead to the child having transition anxiety. In conclusion, the authors suggested consulting with a child therapist to assist in their decision-making about their child.

Dillon and Emery (1996) conducted one of the first long term studies of the effects of mediation on children. In their comparison of a group of parents that went through litigation and another group who went through a mediation process, they found more positive outcomes for the latter group. This included more frequent visitation of the child with the non custodial parent, more weekly communication between parents regarding their child, more likely to have the non custodial parent have an equal involvement in decisions regarding their child. Although the study pointed toward many studies that have shown increased satisfaction, compliance and cooperation after the mediation process, it was suggested that most of these studies had parents who were already at "high preresolution levels on these variables." (p. 138) However, this study is one of the few to actually randomly assign families to either a litigation or mediation process and examine the effects of these two groups beyond two years.

Cohen et al (1999b) suggested five dimensions that may have an impact on a couples ability to benefit from divorce mediation. These dimension focused on the couple's commitment to the divorce process, any prior litigation, the present relationship of the couple during the time of the mediation, and their ability to communicate effectively and their commitment to their child's well-being. (p. 32). Based on these five areas, the authors developed seven typologies of divorcing couples with varying suitability for utilizing the mediation process successfully. The first two discussed were the "Semiseparated couples", who have mutually decided to divorce, and "emotionally withdrawn and non communicative couples", who are nonconfrontational, have agreed to divorce although the decision may not have been quite mutual. These two types of couples have the highest chance of reaching a settlement through mediation alone. The next two couples types, "couples in a power struggle" and "leaver-left couples", may be able to reach a successful mediation with the help of lawyers. The final three types, "battling couples", "enmeshed couples", and "violent couples" have consecutively decreasing chances of success utilizing divorce mediation. It is suggested that a mental health professional or representative of the courts can use these criteria as a means to guide the appropriateness of a referral for mediation or litigation.

In conclusion, this paper examined strengths and limitations of using a divorce mediation procedure as an alternative to traditional divorce proceedings. This included a preliminary discussion of the mediator as a neutral person, the inclusion or exclusion of children during the mediation process, and a review of long-term effects of mediation. It would appear that for many couples going through a divorce, mediation may be a positive alternative to traditional divorce proceedings and may result in healthier adult and children's abilities to cope and adjust to the divorce. This paper also stressed the importance of competence in working with children and people from ethnic minority cultures and the need to evaluate domestic violence. A paper in the future could examine each of these areas in more detail.


  • Beck, P., & Biank, N. (1997a). Broadening the Scope of Divorce Mediation to Meet the Needs of Children. Mediation Quarterly, Vol. 14(3), 179-199.
  • Beck, P., & Biank, N. (1997b). Enhancing Therapeutic Intervention During Divorce. Journal of Analytic Social Work, Vol. 4(3), 63-81.
  • Cohen, O., Dattner, N., & Luxenburg, A. (1999a). The Limits of the Mediator's Neutrality. Mediation Quarterly, Vol. 16(4), 341-348.
  • Cohen, O., Luxenburg, A., Dattner, N., & Matz, D. (1999b). Suitability of Divorcing Couples for Mediation: A Suggested Typology. The American Journal of Family Therapy, Vol. 27(4), 329-344.
  • DeMayo, Robert. (1996). Practical and Ethical Concerns in Divorce Mediation: Attending to Emotional Factors Affecting Mediator Judgment. Mediation Quarterly, Vol, 13(3), 217-227.
  • Dillon, P. A., & Emery, R. E. (1996). Divorce Mediaton and Resolution of Child Custody Disputes: Long-Term Effects. American Journal of Orthopsychiatry, Vol. 66(1), 131-140.
  • Ellis, D., & Stuckless, N. (1996). Mediating And Negotiating Marital Conflicts. Thousand Oaks, California: SAGE Publications, Inc.
  • Gentry, D. B. (1997). Including Children in Divorce Mediation and Education: Potential Benefits and Cautions. Families in Society: The Journal of Contemporary Human Services, Vol. 78(3), 307-315.
  • Marlow, L., & Sauber, R.S. (1990). The Handbook Of Divorce Mediation. New York: Plenum Press.
  • Pearson, J. (1997). Mediating When Domestic Violence Is A Factor: Policies and Practices in Court-Based Divorce Mediation. Mediation Quarterly, Vol. 14(4), p. 319-335.

For more information, please contact Dr. Lazarus at 303-267-2194 or visit his Web site at http://familyresource.com/stevenlazarus/.

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