In Best Interest of the Family
A Rationale for Mandatory Entry into Divorce Mediation
By Richard Haney, Ph.D. (Counselling Therapy) – written Oct. 1988
Originally appeared in Family Mediation Canada Newsletter, Winter 1989
When a family separates, it does not “break up” other than in a legal sense. The words “breaking up” are a linguistic simplification of a complex situation and they avoid the true consequences of a family reconstituting itself.
In 1985 when the Divorce Act was amended, the new Act did not support mandatory entry into mediation on the assumption that couples who are separating would be predisposed to fighting and would not utilize meditation effectively. It seems obvious, however, that if a couple are offered no other recourse than to participate through advocates in an adversarial system, they cannot avoid fighting even if they wish to do so.
The legal worldview is one of competition, individuals, precedents and positions. Families in transition need to be involved with systems that are cooperative, situation-based and issue-oriented. The issue for a divorcing family, whether they be financial, child-related or emotional, are all intimately interconnected and it is absurd to artificially separate them within a logical, deductive, precedent-based system. Families, even when separating and reconstituting themselves, are not comparable to participants in a corporate takeover or adversaries in a judgement following a car accident.
What is missing for divorcing families is a system that responds to their unique needs, not just to the needs of a legal system. While our society teaches people how to acquire things, it is exceedingly negligent with respect to teaching people how to restructure, let go or “lose”. The legal system is a win-lose situation and is not the place a separating family needs to be when experiencing fears of losing one’s children, money, etc.
This paper posits that all divorcing couples (except those in abusive situations) should be required to try mediation in tandem with or before litigation. Mandatory entry into mediation is not to be confused with mandatory mediation. Although other countries (e.g. Japan, China) have mandatory mediation systems, it does not seem that North America is yet ready for that significant a change of direction. We should set only the realistic and attainable goal of mandatory entry “into” mediation.
II. THE NEED
In the various jurisdictions within the United States where a judge will allow potential family disputants to come before the court only after they have attended “divorcing education” sessions and/or mediation, only 50% of the couples ever end up in court for litigation.
Mediation is not another form of law; it is a field of its own – just as is psychology or social work. Judges who utilize the mediation process are indeed client-oriented. They refer clients out of the legal system because they know that the majority of divorcing families will benefit from mediation.
Couples need to learn how to balance power, to accommodate and to negotiate when they are separating. A mediator is specifically trained for this task of enabling and empowering the two parties.
Recent research released by the Ministry of Justice concludes:
- Global (comprehensive) mediation of all issues is superior to other forms of family dispute resolution.
- Women, contrary to public perception, receive better child support outcomes from mediation than from litigation.
- Couples are generally quite satisfied with the mediation process.
- Lawyers are over-utilized in family financial matters. If the financial issues are complex, they should be referred to an accountant. If the financial issues are simple, then a mediator can handle them at significantly less cost.
It is patently obvious that our society can no longer afford the short-term and long-term social and economic costs of couples locked in combat for extended periods of time. It is tearing at our social fabric. We must shift the onus (responsibility) for the resolution of conflict away from the co-operative party and onto the shoulders of the uncooperative party.
We need to reintroduce to divorcing families the invaluable support functions of the extended family. Mediation can encompass whole families – not just two “disputants”.
III. FUTURE TRENDS
As the concept of global community grows, out-moded or deficient systems of conflict resolution will diminish just as consumers change to superior products or those at a lower price when they become available. Obsolete mechanisms wither away. We appear at this time to be witnessing the evolution of the field of mediation, as practiced by professional mediators, rather than by lawyers, psychologists or social workers. Divorcing families are using mediation in ever-increasing numbers in most urban areas, in spite of the fact that lawyers have been ignoring the provision in the Divorce Act that instructs them to refer all potentially suitable clients to mediation. It appears that the legal profession is attempting to hold back the tide at the same time that divorcing families themselves are seeking non-adversarial responses to their dilemmas.
In my experience, I have found that while lawyers in Montreal and Ottawa, in particular, are trying to thwart referrals to global mediation, clients are circumventing them and are successfully mediating mutually satisfactory memoranda of agreement with only minimal use of lawyers.
One major change that is becoming more evident every day is that potential clients no longer view the legal system and its functionaries as all-knowing or perfect, just as has occurred with respect to doctors. The use of two lawyers to negotiate a resolution to a family conflict will go the way of the dinosaur. Divorcing families will either work out an agreement with the aid of a global mediator or will end up in court with the judge playing the role of the ultimate binding arbitrator. Negotiations between two lawyers are generally unnecessary and exceedingly costly.
Another trend that we are seeing is that lawyers themselves do not do much mediation, as it is very time consuming and it does not fit into their adversarial approach to dispute settlement.
The roadblocks to mediation are many and yet virtually all unnecessary. Bad habits are hard to change and they run very deep. The following is a partial list of some of the more powerful inhibiting factors:
- Lawyers are interfering with the development of the field of mediation even though existing federal policy and law on divorce favour expanded use of mediation.
- Lawyers and judges often confuse the concepts of mediation and negotiation. Mediation is performed by one professional dealing with both parties, while negotiation utilizes two separate advocates, one for each of the parties.
- Separating spouses who approach lawyers are not being informed of the option of mediation. For example, of the many free legal information recordings which people can reach by dialing a 1-800 telephone number, not a single one contains information about the use of mediation.
- There is no mediation association composed of full-time mediators. Virtually all the associations that do exist are under the control of lawyers who do very little, if any, mediation themselves. The editorial boards of the newsletters of these associations are largely controlled by lawyers and they usually will not publish articles such as this one (hopefully this will be an exception). A professional guild of full-time mediators is greatly needed.
- As of yet there is no licensing or certification of mediators.
- Family Law Commissioners and various judges generally refer clients only to lawyer-mediators or to non-lawyer mediators who deal only with child-related issues. It is virtually a closed shop situation.
Lawyers provide the greatest roadblock to the evolution of mediation. Early mediation practitioners, with good intentions, assumed that “working with lawyers” was the only way to promote the field. This approach has proved to be futile. We must promote mediation directly to governments, the public, the media, and clients with as little intrusion from and involvement by the legal system as possible.
We must also support members of the legal system who, with great wisdom and courage, refer clients out of that system and into mediation. Legal intervention should be used only as a valuable supplement to mediation – an alternative to mediation for intractable and/or abuse cases.
In summary, mandatory entry into mediation is a very much needed and desired process for separating couples. However, it will become the norm only as a result of legislative change, public education, public support, and public access to family mediation services.
It is time to speak out strongly for family mediation and mediation centres. Perhaps some day soon, parents and guidance counselors will be heard saying to their children, “Are you planning to be a doctor, a lawyer, a teacher, or a mediator when you grow up?”