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disputes.  This has implications for diversion of cases from the court into mediation.  The studies that tried to identify common predictors towards settlement in mediation varied so much that it seems impossible to reach agreement on the optimum predictors.

7.28Irving and Benjamin referred to what Thoennes and Pearson had identified as a double standard:

“litigation is expected to produce only a settlement whereas mediation  - in some cases, only two hours in duration - is expected, in addition, to transform intense marital conflict into affectionate cooperation, and intense distress into positive post divorce family adjustment”.835

Unsuitability of mediation

7.29Mediation is unsuitable, or the parties are not ready for it, where there is violence,836 or threatening behaviour followed by an unwillingness to negotiate, a lack of communication and trust, dominance and power imbalance or an unresolved separation,837 a history of psychiatric illness, alcohol or drug abuse, or child sexual abuse.

Power

7.30The mediator works:

“to help the couple both retain and redistribute more equitably the power between them, usually as regards the children and the money, while in psychotherapy and family therapy the practitioner assists the individual to take more power and the family to find ways of using it more effectively and mutually.”838

7.31Mediation also empowers the couple as they retain autonomous decision making, even if it is “in the shadow of the law”.839  In one of the surveys of the Family Court of Australia, 79% of the parties were experiencing moderate to high relationship conflict, yet a mediated agreement was reached in 82% of cases.840

835 Thoennes and Pearson, “Response to Bruch and McIsaac,” Family and Conciliation Courts Review, (1992), 30, (1) at 142-3, quoted in Irving and Benjamin, op cit at 69.

836 It is now thought that violence per se should not automatically exclude the parties from mediation - see chapter 9.

837 This is where one party may want a reconciliation or has failed to come to terms with the fact that his marriage is over.

838  Robinson, supra at 189.

839 As used by Mnookin and Kornhauser, “Bargaining in the Shadow of the Law; the Case for Divorce”,  Harvard Law Journal, Vol. 88(5), (1979) 950-7.

840 Bordow and Gibson, Evaluation of the Family Court Mediation Service, Research Report No. 12, (March 1994).

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