A Guide to Implementing Divorce Mediation Services in the Public Sector*

• Author: Elizabeth A Comeaux
• Published date: 01 December 1983
• DOI: http://doi.org/10.1111/j.174-1617.1983.tb00987.x
• Date: 01 December 1983

A

Guide to Implementing Divorce

Mediation Services

in

the

Public Sector*

Elizabeth A Comeaux""

"This is

a

consulting report for the Di-

vorce Mediation Research Project,

a

national

evaluation of public sector divorce media-

tion services directed by Jessica Pearson,

Ph.D. and administered by the Association of

Family Conciliation Courts.

It

was prepared

with the support of grant 90-CW-634 of the

Children's Bureau, Administration for Chil-

dren, Youth and Families of the United States

Department of Health and Human Services,

Program Officer, Jane Hunsinger. Any opin-

ions, conclusions, errors or recommenda-

tions expressed in this article are those of the

author and the Divorce Mediation Research

Project

and do

not necessarily reflect the

views of the funding agency and/or the Pro-

gram Officer. An earlier version of this report

was presented

at

the American Bar Associ-

ation's program

on

Alternative Means

of

Family Dispute Resolution, June 3-5, 1982,

and published by the American Bar Associa-

tion in its conference proceedings under the

title, "Procedural Controls in

Public

Sector

Domestic Relations Mediation.'' The report

was researched and written by Elizabeth

Comeaux

and

edited by Jessica Pearson. Jay

Folberg, Larry Gaugn and Harriet Whitman

Lee reviewed the manuscript and made help-

ful comments and revisions.

Introduction

1.

The Role

of

Government in Mediation

Services

A. Facilitation

B. Encouragement

C. Provision

D. Mandatory Usage

**Elizabeth

A.

Comeaux, J.D. is Director

of

the Denver

Mediation Center

and

Consultant to the Divorce

Mediation Research Project.

II.

Bases

of

Legal Authority for Mediation

Services

A. The Legislative Branch

1. Explicit Statutes

2.

Implicit

Statutory Authority

3.

County Ordinances

B. The Judicial Branch

1. Supreme Court Rules

2. Local Court Rules and

Administrative Orders

3. Ad-Hoc Judicial Orders

C. The Executive Branch

1.

Agency Policy and Rules

2. Executive Orders

111.

Alternative Methods

of

Administering

Mediation Services

A. The Judicial Department

B. Court Support Services

1.

Marriage and Family Counseling

2. Custody Investigation Services

C.

Child Support Enforcement Agencies

D. A Public Mediation Agency

E.

Contracting with Private Agencies for

Units

Mediation Services

IV.

The Specific Procedures Governing the

Mediation Service

A. Definitions of Mediation

B. Eligibility for Mediation

C. Initiating Mediation

D. Mediation and the Adversary

E.

Privacy

F.

Confidentiality

G.

Legal Representation of the Parties

H.

Mediator Qualification

I.

Public Information

Timetable

Conclusions

1

CONCIUATlON COURTS REVIEW/VOLUME

21,

NUMBER Z/DECEMBER

1983

Introduction

The problems of court delay, high costs

and assembly line treatment have prompted

renewed interest in ways of resolving dis-

putes outside the courts.

A

variety of such

alternatives to adjudication

exist

including

arbitration, mediation and negotiation.

These processes may be distinguished by

the degree of "external involvement" they

entail.

Adjudication, the most commonly

known dispute resolution process, involves

a

format procedure, the

use

of

a

third party

with coercive power and

a

"win or lose" de-

cision that

is

narrowly focused on the im-

mediate matter in issue. The process does

not attempt to deal with the underlying rela-

tionship between the parties. Similarly, arbi-

tration involves

a

coercive third party who

renders

a

written opinion that

is

rationalized

by reference to general principles. Unlike

judicial proceedings, however, the parties

often select the arbitrator,

as

well

as

the sub-

stantive legal rules that govern the process.'

Mediation, on the other hand, involves

a

third party whose role

is

to facilitate the par-

ticipation of the parties in negotiating

a

mutually agreeable settlement. Specifically,

the mediator helps disputants to identify the

issues, reduce misunderstandings, vent

emotions, clarify priorities, find points of

agreement, explore the new areas of com-

promise and negotiate an agreement. Unlike

adjudication or arbitration, mediation stres-

ses

informality, open and direct communica-

tion, reinforcement of positive bonds, coop-

eration and avoidance of blame.*

It

is

atten-

tive to the underlying relationship between

the parties and aims

to:

reorient the parties toward each

other not by imposing rules on

them but by helping them to

achieve

a

new and shared percep-

tion of their relationship,

a

percep-

tion that will direct their attention

toward one another.3

There

is

growing sentiment among prac-

titioners and scholars that mediation

is

best

suited to "polycentric" problems not amen-

able to all-or-nothing solutions; for example,

disputes between individuals in

a

long term

relationship.4 Not surprisingly, both families

2

and family service professionals are turning

to

mediation

as

a

forum for family reorgani-

zation following divorce that is less destruc-

tive to relationships between ex-spouses

and their children. According to critics, litiga-

tion

escalates

conflict and trauma without

addressing the counseling and negotiating

needs of most divorcing couples. Because

it

pits one parent against the other,

it

under-

mines the communication and cooperation

necessary for effective post divorce parent-

ing. Finally,

it

results in stipulations and or-

ders that are frequently resented and

all

too

often violated.5

Mediation, on the other hand,

is

be-

lieved to address the causes of disputes, re-

duce the alienation

of

litigants, inspire con-

sensual agreements that are durable over

time, help divorcing couples resume work-

able relationships and jointly rear their chil-

dren. Not insignificantly,

it

is

also believed

to

be more expeditious and inexpensive.6

To

date, courts in many states have

es-

ta blished services offering mediation, and

many

lawyers

and mental health profession-

als

have opened private mediation practices.

Numerous legislatures are considering bills

to establish public sector mediation ser-

vices, and California recently enacted

a

bill

making mediation mandatory in

all

cases of

contested child custody and visitation.'

Although the number of public sector

mediation services has increased rapidly,

there has been very

little

consistency in the

form they

take.

This

is

both understandable

and desirable. Each program

is

shaped by

a

unique combination of legal and political is-

sues and personalities. Moreover, creative

experimentation can only help improve the

quality of existing mediation programs and

enlarge the range of options available to new

jurisdictions contemplating such services.

The following identifies and analyzes the

issues that must be addressed by any group

or jurisdiction contemplating the initiation of

divorce mediation services in the public sec-

tor. Broadly defined, these issues are:

1)

the

role of government mediation services;

2)

the legal authority for the mediation ser-

vices;

3)

the service structure that maximizes

administrative and cost efficiencies; and

4)

the specific procedures that govern the

mediation service.