Mediation as a family dispute resolution process
Contrast between family mediation and negotiation
7.5A lawyer’s usual method of dispute resolution is “turbocharged negotiation.”803 The lawyers negotiate with each other at arm’s length, with the parties being kept out of face to face negotiation with each other.804 “The attorney is the primary interpreter to the client of what is fair, based upon what might happen in court.”805
7.6Mediation is guided by an assumption that parties can reach agreement and that their solution is unique and does not need to be governed by fixed principles of law. Mediation uses negotiation techniques with the mediator facilitating and guiding the parties’ own negotiation process. The focus is on what the couple think is fair.
7.7In a negotiation the lawyers advise and negotiate a settlement on behalf of the parties. Negotiation usually relies on the adoption of different positions by the parties and on a win/lose strategy. There can be an adversarial and competitive approach to the conflict. In contrast, the focus in family mediation is to define issues in mutual co-operative terms and it is based on the interests of the parties rather than their rights.
7.8Some research has shown that mediation is more successful than negotiation. Pearson and Thoennes reported that 80% of a group of disputants assigned to mediation reached agreement compared to 50% of the group assigned to adjudication who negotiated an out of court agreement.806 The atmosphere in mediation is non-adversarial. The mediator controls the process in a way that allows the parties to show mutual respect but he has no decision making power. Ground rules have been agreed in advance which minimise confrontation. This is not to say that mediation does not allow the ventilation of emotion. Mediation can allow this to happen in a safe and non-threatening way.
Research on negotiation and settlement807
803 Donovan, Leisure et al, ADR Practice Book, (1990) at 7.2.
804 Paragraphs 7.3-39 were substantially taken from an unpublished dissertation by Paula Scully, Obstacles to Referral, Planning and Implementation of Family Mediation as a Dispute Resolution Process in Hong Kong; Reflections based on Foreign Systems, April 1996.
805 Erickson, “The Legal Dimension of Divorce Mediation” in Folberg and Milne (ed) Divorce Mediation; Theory and Practice, (1988).
806 “Mediation of contested child custody disputes”, Colorado Lawyer, (1982), 11(2), 337-355, and “Mediating and litigating custody disputes; a longitudinal evaluation”, 17 Family Law Quarterly, 197-524 (1984).
807 Williams, Legal Negotiation and Settlement, (1983).