Does Mediation Work?
Researchers have conducted more than 50 studies since divorce mediation first appeared more than two decades ago. As one researcher puts it, the most detailed research has already been done, i.e., comprehensive research on mediation outcomes. Enough data has been collected and enough analysis conducted to begin drawing clear conclusions about whether mediation works. Along several vital axes, the answer is an unequivocal yes.
Mediation produces agreement in 50 to 80 percent of cases (Benjamin & Irving, 1995). This is the case whether the mediation is court-referred or privately placed, whether mediation is voluntary or mandatory, and whether the mediating couples had a history of domestic violence or intense marital conflict. There is some evidence that settlement rates of more than 85 percent suggest a more coercive mediation style. This is particularly likely to be a factor if settlement rates are the only criterion for judging mediation's success. In general, single-issue mediations have lower settlement rates than mediations involving multiple issues (Walker, McCarthy, & Timms, 1994).
Couples who mediate the issues of their divorce are significantly more likely to be satisfied with their divorce experience compared with teams who have finished an adversarial divorce. A final divorce, according to one study, 69 percent of mediation respondents were somewhat to very satisfied, compared to only 47 percent of opposing men and women (Kelly, Empirical Research in Divorce and Family Mediation, 1989). Interestingly, this preference for mediation was not uniform. On several issues, such as the warmth and sensitivity of the professional, adequacy of information, and satisfaction with child support, there were no statistically significant differences between mediating and adversarial couples' perceptions. On most issues, however, such as the perceived skill level of the professional, the creativity of the professional, the effectiveness of the professional in helping clients deal with anger, the professional’s success avoiding imposing his or her viewpoint on the client, impact on the spousal relationship, satisfaction with the property settlement, satisfaction with arrangements around spousal support, satisfaction with parenting schedules and structures, and understanding children’s needs and issues, mediating couples reported significantly higher levels of happiness.
In general, the difference between men and women in their level of satisfaction with mediation is not statistically significant. This contrasts with adversarial divorce, where men are significantly more dissatisfied than women with the process and outcome (Emery R., 1994).
There has been some discussion of findings that women are disadvantaged in mediation, but initial research has been discredited. A recent review of the literature spells out the chronology:
In a much-hailed experimental study, (two researchers) found that women in litigation felt that they had won more and lost less than their counterparts in mediation, whereas the reverse was true of men. More recent work by (these same researchers and their associates) has since qualified their actual results. These recent studies showed that women's satisfaction in the litigation group rose through time, whereas men’s satisfaction declined. In contrast, in the mediation group, women’s happiness, already very high on entry, changed very little, whereas men’s satisfaction increased through time. On the whole, then, women in mediation expressed greater satisfaction with both process and outcomes than did their litigation counterparts (Benjamin & Irving, 1995).
Effect on Terms of Agreement
In general, mediated agreements tend to be more comprehensive than settlements reached either voluntarily or involuntarily in adversarial court (Kelly, Developing and Implementing Post-Divorce Parenting Plans: Does the Forum Make a Difference? 1993). In general, mediation results in more joint legal custody than adversarial processes (Emery P., 1994, 1991) but not necessarily a different parenting schedule (Emery R., 1994).
Researchers have not noted a statistical difference in the treatment of child support payments. However, mediating fathers are more likely to agree to pay for “extras” for their children and are more likely to agree to help with college expenses (Kelly, Mediated, and Adversarial Divorce Resolution Process: An Analysis of Post-Divorce Outcomes, 1990).
Long-term Mental Health
Researchers agree that mediation does not seem to have any long-term statistically significant effect on the psychological adjustment of either divorcing couples or their children, whether the mediation is custody only or comprehensive (Emery P., 1994, 1991) (Walker, McCarthy, & Timms, 1994).
Cost in Time and Money
Mediating couples tend to resolve the issues in their divorce in substantially less time than that taken by their counterparts in litigation (Emery R., 1994). They also tend to spend significantly less money (Kelly, Mediated, and Adversarial Divorce Resolution Processes: An Analysis of Post-Divorce Outcomes, 1991). In one study, couples in the adversarial sample reported spending 134% more (more than twice as much) for their divorces than those in the mediation sample (Kelly, Mediated, and Adversarial Divorce Resolution Process: An Analysis of Post-Divorce Outcomes, 1990). Most reports tend to find less dramatic differences in the 30-40% range (J Pearson, 1985).
Compliance and Relitigation
Researchers generally report higher compliance rates with mediated agreements compared to agreements reached in the adversarial process. This includes parenting schedules, payment of child support and spousal support, and completing the property's final division (Emery I. B., 1994). Relitigation rates are low in general among mediated samples and are lower than in adversarial examples (Benjamin & Irving, 1995).
What remains is the more expensive and challenging task of exploring the process of mediation to learn what styles work well, and why. The little bit of research that has been completed appears to show that the mediators who are more effective in helping their clients reach an agreement are more active in structuring the process, focus more on problem-solving than on reconciling positions, discuss options and solutions rather than facts, and maintain flexible over the process of mediation that varies depending on the characteristics of their clients (K Slaikeu, 1985).
What We Don’t Know
Research is scant to nonexistent on the following issues: Should the mediator tell clients about legal matters or direct them to their attorneys? Should lawyers be present or absent from actual mediation sessions? Should the mediator welcome and deal with emotional issues or push them aside? Should mediators be directive or passive? Should mediators work individually or in teams? Should sessions be sequential, or should mediation be conducted in a marathon format? Should the parties meet together or in separate caucus rooms? Should mediators be in the same racial group as their clients, or does it matter? Should pure mediation be replaced with a med/arb system that gives the clients assurance of a resolution? All these and other questions remain to be answered as researchers explore the effectiveness and divorce mediation process.
Benjamin, M., & Irving, H. (1995). Research in Family Mediation, Review, and Implications. Mediation Quarterly, 53-82.
Emery, I. B. (1994). An Evaluation of Process and Outcome in a Private Family Mediation Service. Mediation Quarterly, 35-55.
Emery, P. (1994, 1991). The Equity of Mediated Divorce Agreements. Mediation Quarterly, 7, 347-363.
Emery, R. (1994). Renegotiating Family Relationships. Divorce, Child Custody, and Mediation.
J Pearson, N. T. (1985). A Preliminary Portrait of Client Reactions to Three Court Mediation Programs. Conciliation Courts Review, 1-14.
K Slaikeu, R. C. (1985). Process and Outcome in Divorce Mediation. Mediation Quarterly, 10.
Kelly, J. (1989). Empirical Research in Divorce and Family Mediation. Mediation Quarterly, 24.
Kelly, J. (1990). Mediated and Adversarial Divorce Resolution Process: An Analysis of Post-Divorce Outcomes. Fund for Research in Dispute Resolution, Northern California Mediation Center.
Kelly, J. (1991). Mediated and Adversarial Divorce Resolution Processes: An Analysis of Post-Divorce Outcomes. Fund for Research in Dispute Resolution.
Kelly, J. (1993). Developing and Implementing Post-Divorce Parenting Plans: Does the Forum Make a Difference? Non-residential Parenting: New Vistas in Family Living, 136-155.
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Dr Reanna Waugh PhD