DIVORCE MEDIATION: Research and Reflections

• Date: 01 January 2005
• Published date: 01 January 2005
• DOI: http://doi.org/10.1111/j.1744-1617.2005.00005.x

FAMILY COURT REVIEW, Vol. 43 No. 1, January 2005 22–37

© 2005 Association of Family and Conciliation Courts

Blackwell Publishing, Ltd.Oxford, UKFCREFamily Court Review1531-2445© Association of Family and Conciliation Courts, 2004431ARTICLE

Emery et al. / DIVORCE MEDIATIONFAMILY COURT REVIEW

DIVORCE MEDIATION:

Research and Reflections

Robert E. Emery

David Sbarra

Tara Grover

University of Virginia Abstract

Mediation and other forms of alternative dispute resolution (ADR) grew rapidly in the last few decades as a

result of high divorce rates, frequent conflicts between parting parents, the resulting administrative burden on

courts, and especially concerns about damaging effects on children and postdivorce family relationships. This

article focuses on our longitudinal research involving randomized trials of mediation and adversary settlement

to support the conclusions that mediation can: (1) settle a large percentage of cases otherwise headed for court;

(2) possibly speed settlement, save money, and increase compliance with agreements; (3) clearly increase party

satisfaction; and (4) most importantly, lead to remarkably improved relationships between nonresidential parents

and children, as well as between divorced parents—even twelve years after dispute settlement. The key “active

ingredients” of mediation are likely to include: (1) the call for parental cooperation over the long run of co-

parenting beyond the crisis of separation, (2) the opportunity to address underlying emotional issues (albeit

briefly), (3) helping parents to establish a businesslike relationship, and (4) the avoidance of divisive negoti-

ations at a critical time for family relationships. We call for more research on mediation and other forms of

ADR, as well as a renewal of the excitement and optimism of the “first generation” of mediators, qualities that

are “active ingredients” in any successful social or psychological intervention.

Keywords:

mediation

;

divorce

;

custody

;

research

In the last few decades, mediation and other forms of alternative dispute resolution

(ADR) for disputes between divorcing, divorced, or never-married parents have spread rap-

idly, particularly for conflicts involving custody and other issues about children. The growth

of mediation followed increasing rates of divorce in the United States and elsewhere in the

industrialized world, and was motivated by a general dissatisfaction with the traditional

adversary methods for settling these disputes through attorney negotiations or litigation.

Advocates promised that mediation and other forms of ADR would achieve the two broad,

but not always fully compatible, goals of making dispute resolution both more efficient and

increasingly family friendly.

Motivated by research showing that many harmful effects of divorce on children were

due to exposure to and involvement in parental conflict (Emery, 1982), we embraced the

promise of mediation (Emery & Wyer, 1987a) and developed a court-based custody mediation

program in the mid-1980s, one of the first such programs in Virginia. Two unique features

distinguished our efforts from most mediation programs. First, our objective from the

beginning was to evaluate the effectiveness of mediation in comparison to adversary settle-

ment, and, in fact, we were able to obtain random assignment to one or the other alternative,

a powerful and critically important scientific control. Second, our mediation process was

short-term so as to be practical for court programs, yet our mediation style also was informed

by therapeutic considerations, including our own unique psychological conceptualizations

Author Note:

We are grateful to the William T. Grant Foundation for their ongoing support of this research.

Address correspondence to: Robert Emery, Ph.D., Department of Psychology, Gilmer Hall, Box 400400, University of Virginia, Charlottesville, Va. 22904, ree@virginia.edu

Emery et al. / DIVORCE MEDIATION 23

(Emery, 1994, 2004). Thus, our intervention contained elements of both problem solving

and therapeutic mediation.

In this article, we focus on the rationale, theory, and twelve years of longitudinal

follow-up research from our program. We highlight the surprisingly large benefits we

found for mediation when compared to adversary settlement even twelve years later. We

also offer some reflections about the critical “active ingredients” of mediation, and

make suggestions about needed research on ADR in family conflicts. Consistent with our

emphasis and with other articles in this special issue, our primary concern is whether and

how ADR can promote family well-being as opposed to the potential benefits of ADR for

the administration of justice. We use our own work to highlight key themes, findings, and

issues rather than extensively reviewing the entire literature. However, we do incorporate

the results of other’s research, particularly to bolster, challenge, or fill in gaps in our own

findings.

WHY MEDIATE DIVORCE AND CUSTODY DISPUTES?

RATES OF DIVORCE AND DIVORCE CONFLICT

Why has ADR for divorce disputes grown so rapidly? The increase in divorce is one

main reason. Divorce rates escalated rapidly in the United States beginning in the late

1960s, a trend that foreshadowed similar increases in other English-speaking countries and

throughout most of the industrialized world (Pryor & Rodgers, 2001; Emery, 1999). Since

the early 1980s, divorce rates in the United States have flattened and even declined some-

what, yet the plateau reached is a high one. More than 40% of first marriages in the United

States are still predicted to end in divorce (U.S. Bureau of the Census, 1992). Not only does

divorce remain frequent, but other demographic trends, particularly increased rates of

nonmarital childbearing and cohabitation (parenting arrangements that are known to be

less stable than marriage), appear to account for much of the apparent decline in divorce.

If people who cohabit and/or have children outside of marriage had not “selected out” of

marriage, there would be little or no decline in American divorce.

Some break-ups are amicable and even beneficial; however, many are acrimonious,

some intensely so. One thorough survey of divorces in two California counties found that

25% involved either substantial or intense conflict, and 24% required the involvement

of a professional other than the parties’ lawyers (a mediator, evaluator, or judge) to reach

settlement (Maccoby & Mnookin, 1992). There are no reliable data on the frequency or

intensity of legal and personal disputes that develop between formerly amicable parents as

time passes and circumstances change (e.g., remarriage, relocation) or on disputes between

never-married parents, but experience suggests that both are frequent. Thus, not only are

parental separation and divorce common, but they are commonly accompanied by serious

conflict between former partners who remain parents.

From the perspective of increasing the efficiency of the administration of justice,

increasing rates of divorce, high conflict, and the resulting cost in terms of time and

money (for the courts and the parties involved) are prime reasons for promoting mediation

and other forms of ADR. From the perspective of creating more family-friendly interven-

tion programs, the more important concern has been how children and postseparation

family relationships are affected by divorce, parental conflict, and adversary settlement

procedures.