Factors Predicting Outcome of Divorce Mediation

• Author: Kendall D. Johnson
• DOI: http://doi.org/10.1111/j.174-1617.1984.tb00097.x
• Published date: 01 December 1984
• Date: 01 December 1984

Factors Predicting Outcome

of

Divorce Mediation

Kendall D. Johnson*

Divorcing couples who are contesting

issues of custodyhisitation strain the resources

of domestic courts.

In

some states, however,

these couples are routinely assigned to media-

tion, prior to the date of the court hearing, in an

effort to reach out-of-court settlement. This

mandatory mediation is successful in some

cases, while other cases go on to trial. The rea-

sons for this have not yet been established by

research.

This study explored numerous background

variables cited in the mediation literature to de-

termine their influence on successful out-of-

court settlement. The usefulness of previous

research was somewhat limited

in

scope, Sam-

pling or design for application to a mandatory

situation, but each study contributed certain rel-

evant ideas.

Background for

the

Study

Identifying the variables involved in divorce

settlements is difficult. While the divorce rate is

high, the number of cases settled prior to trial is

even larger. Dr. Barbara

J.

Pedersen, concilia-

tion court counselor for the San Bernardino

County Superior Court, reports that of all divorce

filings for the periods of 1973

to

1978, and 1979

through 1982, only 15% contested issues of

custody and visitation. Of these, only 15% were

not resolved immediately by mediation. That

court routinely referred these for further study

and of that group only about 15% ended up in

lengthy trial.

Alexander (1980) compared certain con-

siderations involved in selecting mediation ver-

*Kendall

D.

Johnson,

M.S.

is

affiliated with Greenleaves

Associates, Claremont, California.

The author expresses his deep appreciation

to

Bar-

bara

J.

Pedersen, Ph.D., Ontario Family Court Services, for

her assistance in carrying out the field research, and

to

Catherine Cameron, Ph.D., University of Laverne, for her

continued research advice and editing.

sus litigation. He assessed hostility between

spouses, legal concerns, and how parents

weighed the child’s best interest against their

own. His sample included only those parents

who could agree to seek mediation as an alter-

native procedure. They were seen sometime

after the process and reported retrospectively,

leaving findings open to bias. He concluded that

the hostility between divorcing parents did not

significantly influence their weighing the child’s

best interest in resolving the issue of custody.

This runs counter to Westman and Cline’s (1971)

report that visitation was a major area of conflict

between divorcing parents.

Kressel (1980) compared couples who ini-

tially chose to attempt mediation with couples

who did not. He used an intensive analysis of a

limited number of cases and found that the pro-

cess of mediation tended to recapitulate the

major dynamics of the divorce decision period.

He

developed a typology

of

interaction based on

three dimensions which influenced both divorce

and mediation. These were:

1.

Degree of ambivalence toward divorce;

2. Frequency and openness of communication;

3.

Level and overtness of conflict.

The decision to divorce is rarely arrived at

by the two people simultaneously. Typically, the

non-initiator had less time to prepare for the

emotional and substantial issues of divorce.

Non-mutuality was negatively related to smooth

negotiation.

Gold (1981) in her description

of

a co-

mediation team model suggested four parame-

ters for assessing and working with a couple

which affect readiness to mediate. First, the

anxiety level surrounding the task of individua-

tion can sabotage negotiation. Second, non-

mutuality

of

decision to divorce places spouses

at different stages of the separation process.

Third, ambivalence concerning the decision to

divorce makes agreement on other issues hard

to reach. The persistence of attachment varies

in intensity and affects the rate of progress.

and,

31

CONCILIATION

COURTS

REVIEWNOLUME

22,

NUMBER

PIDECEMBER

1984