Mandatory Mediation outside the Court: A Process and Effect Study

Published date01 September 2015
Date01 September 2015
C R Q, vol. 33, no. 1, Fall 2015 19
© 2015 Wiley Periodicals, Inc. and the Association for Confl ict Resolution
Published online in Wiley Online Library ( • DOI: 10.1002/crq.21129
Mandatory Mediation outside the Court:
A Process and E ect Study
Odd Tjersland
Wenke Gulbrandsen
Hanne Haavind
In a study of 154 couples in precourt mandatory mediation in Norway,
a majority of the thirty-eight high-confl ict (HC) cases left the mediation
after two sessions and without any agreements. Eighteen months later,
ve of ten HC couples were still without an agreement. With seven
sessions available free of charge, the mediation system seems to fail at
helping the HC cases.  e authors discuss some of the challenges that are
attached to a mandatory mediation system. One explanation seems to
be the attempt to fulfi ll several ambitions with the same intervention.
Some ideas for improvement of the system are introduced.
For several years, there has been a considerable dispute in the fi eld about
mandatory court mediation.  e discussion has addressed judicial, psy-
chological, and ethical challenges (Hedeen 2005; Quek 2010; Sander 2007;
Sourdin 2012; Welsh 2001).  is article addresses the experiences with
mandatory mediation outside court. It is a report from a naturalistic study
of 154 divorce cases, with a special focus on parents who brought high levels
of confl ict into the mediation room.  e discussion of the fi ndings focuses
mostly on questions regarding the context of the mediation arrangement.
Background to the Study
irty years ago, divorce in Norway was primarily an administrative func-
tion.  e divorcing parties fi lled out a petition for divorce addressed to the
county governor, who normally gave consent. In this respect, the process
C R Q • DOI: 10.1002/crq
was diff erent from the court-based treatment of divorce in many English-
speaking countries. However, social changes contributed to a public debate
about how Norwegian society should handle divorce in families with chil-
dren.  e number of divorces, which increased substantially during the
second half of the nineteenth century, was connected to greater education
and economic independence; partners did not have to stay in unhappy rela-
tionships. At the same time, an increasing number of cases were brought to
court with parents in confl ict about custody of their children. One explana-
tion for this was the changing gender roles within families: fathers had taken
a more active role in the daily care of children. Both parents felt entitled to
close and continued contact with their children after separation and divorce
and demanded solutions often incompatible with other living conditions,
such as work, housing, education, and new family constellations.
Together with these changes, research has clearly documented confl icts
among separating parents as the main reason for children having problems
after divorce (Amato and Keith 1991). Society had to address parental
confl icts: it was evident that not all of these cases could be handled by the
court. In 1980, California was the fi rst state to introduce mandatory medi-
ation for all parents with custodial and visitation disputes, with assistance
given mostly by professionals within the court system (Ricci 2004). At the
end of the 1980s, ideas about alternative dispute resolution reached Scan-
dinavia (Coogler 1978; Folberg and Taylor 1984; Haynes 1981; Kaslow
1981) and inspired the development of divorce mediation projects (Öberg
and Öberg 1982; Tjersland 1992, 1995, 1998).
In 1991, infl uenced by continuing social change and research on medi-
ation, the Norwegian government revised the Marriage Act, making
mediation mandatory for all separating married couples who had children
under age sixteen.  e parents were required to attend mediation before
separation was granted and before they could bring the case to court.  e
mediators were expected to help the parents in formulating written agree-
ments about visitation and living arrangements, assist them in getting qual-
ifi ed information about the fi nancial consequences of the arrangements,
and inform them about their children’s reactions and needs connected to
a breakup.  e assistance was free of charge for six sessions.  e media-
tion task was primarily given to therapists and social workers within Family
Guidance Offi ces, a public service widespread throughout the country.
In 2004, it was decided that mandatory mediation would also include
separating parents who had not been married. To ensure that these par-
ents reported for mediation, welfare authorities made fi nancial support

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