WOMEN'S AND MEN'S VIEWS OF MEDIATION IN VOLUNTARY AND MANDATORY MEDIATION SETTINGS

• Author: Joan B. Kelly,Mary A. Duryee
• Date: 01 January 1992
• DOI: http://doi.org/10.1111/j.174-1617.1992.tb01267.x
• Published date: 01 January 1992

WOMEN’S AND MEN’S VIEWS

OF

MEDIATION

IN

VOLUNTARY AND

MANDATORY MEDIATION SETTINGS

Joan

B.

Kelly

Mary A. Duryee

This article reports findings regarding women in mediation

from

a combined group

of

I84

persons who received mediation servicesfiom the Alameda County Superior Court Family Court

Services or the Northern California Mediation Center. This empirical study refutes many

of

the

criticisms

of

mediation by some feminist critics

of

the process.

In

an essential way, gender differences lie at the heart of most divorce

conflict. Divorce not only forces a personal, painful confrontation between

“what we wish we had been” and “what we actually became” but involves a

struggle to reorganize one’s sense of self. Among the tasks of this reorgani-

zation

is

the need to examine the gender roles undertaken during the marriage

and the applicability of these roles

in

the postdivorce lives of the family. What

contributions will each now make

in

raising the children? Who will be obli-

gated to support whom

and

in

what ways?

At the same time, the most heated array of questions surrounding the

mediation process also stem from gender-related concerns: Do men and

women come to the divorce process with different expectations?

Do

men and

women perceive the process differently?

To

what extent are their expecta-

tions met? Are there hidden biases

in

the process

of

mediation which result

in

unfair outcomes for men

or

women? How should socially defined values

about gender affect court custody decisions?

The shift

in

emphasis

in

the past decade to resolving separation and

divorce disputes in mediation rather than through adversary procedures has

Authors’

Note:

Research

of

the first author was funded by the San Francisco Foundation and

the

Fund

for Research in Dispute Resolution. Research of the second author was funded by the

Judicial Council of the State

of

California, Family Court Services, andAlameda County Superior

Court. The opinions, findings, and conclusions presented herein are those of the authors and not

necessarily those of the Judicial Council. The authors acknowledge the assistance ofLynn Gigy.

Correspondence should be addressed to Joan

B.

Kelly,

100

Tarnal Plaza, Suite

175,

Corte

Madera, CA

94925

or to Mary

A.

Duryee, Family Court Services,

1221

Oak Street, Oakland,

CA

94612.

FAMILY

AND CONCILIATION COURTS

REVIEW, Vol.

30

No.

1,

January

1992

34-49

0

1YYZ

Sage

Publications,

Inc.

34

Kelly, Duryee

/

VIEWS

OF

MEDIATION

35

been accompanied by voices of optimism, praise, caution, and criticism.

Despite the increased use of divorce and custody mediation in court and

private sector settings, empirical research investigating the effectiveness of

mediation and its outcomes remains limited but growing (Kressel, Pruitt,

&

Associates,

1989).

Research comparing custody mediation to custody litiga-

tion has produced modest, positive results favoring mediation. In those few

studies using an experimental

or

quasi-experimental design, mediation was

observed to reduce the need for court hearings, reduce the time to settlement

of

the disputes, and produce greater satisfaction among users (Emery

&

Wyer,

1987;

Pearson

&

Thoennes,

1989).

Compared to the customary adversarial

divorce proceeding, divorce mediation encompassing all issues of property,

support, and custody was found to be less expensive, more satisfactory for

both men and women, and produced higher levels of cooperation and reduced

conflict

in

the first year after final divorce (Kelly,

1989, 1990, 1991a,

in

press). Neither the mediation of custody disputes nor comprehensive medi-

ation of all divorce issues were found to lead to improved psychological

adjustment among the adults (Emery

&

Wyer,

1987;

Kelly,

1990;

Pearson

&

Thoennes,

1984)

or

the children (Kelly,

1991b).

A research project of Emery and Wyer

(1987)

heightened interest in

gender differences when their data seemed to indicate that the litigation

women felt that they had won more and lost less relative to the mothers in

mediation, while the mediation fathers seemed to report greater benefits from

mediation. Some saw this finding as evidence that mediation does not serve

women’s needs (Bruch,

1988).

However, a subsequent report from the same

project, after analyzing the data in greater depth, concluded that

the gender difference [was] not

a

result of the women’s dissatisfaction with

mediation. Rather, the source of the gender difference lies in the litigation

group. Women were quite satisfied with their experiences in litigation, whereas

men were very unhappy. Mediation could

not

produce

more

satisfaction for

mothers, because women were very satisfied with their experience in court.

This stands in contrast

to

fathers, who were extremely unhappy with theirexpe-

rience

in

litigation

but

who were rather satisfied with mediation. (Emery

&

Jackson,

1989,

p.

15,

emphasis added)

In

other words, it was

the

dissatisfaction of men with their experiences in

court which accounted for the differences between the men and the women

rather than dissatisfaction with mediation

on the

part of women.

These

latter

conclusions were supported in a replication study with a larger sample

(Emery, Matthews,

&

Wyer, in press).

beminist theoretical thinking has contributed a richness and complexity

to the dimensions of gender differences, including postulated differences