Drew Peterson, JD, has been mediating family cases since 1987. He is an Advanced Family Practitioner Member of the Association of Conflict Resolution.

In the last few decades an alternative has been developed to the traditional approaches to resolving family legal disputes. This alternative method is called family mediation. It is a voluntary process and does not work in all cases, but family mediation has been demonstrated to provide a satisfactory result in a great many cases. Combining techniques from fields as diverse as family therapy, family law, labor mediation, international diplomacy, and negotiation theory, family mediation provides a new option to individuals who need to resolve legal disputes within their families.

Mental health professionals have made great advances in the understanding and treatment of family dysfunctions in the past fifty years. The legal approach to resolution of family disputes, however, has not much changed over time. The traditional adversarial approach is still applied to such disputes. An attorney presents each side of the case to a judge for a decision. The presentations are made in as assertive and persuasive a manner as possible. Experts are called as witnesses to establish the truth of one or another side of the dispute. The judge, who is generally trained in the law with no background in any of the disciplines of mental health, decides the case in favor of one side or another. Sometimes the judge will reach a compromise decision between the positions of the parties. But most often there are a "winner" and a "loser" on those different issues that are presented to the court for a decision.

What Is Family Mediation?
"Family mediation" is defined by the Association of Family and Conciliation Courts as "a family-centered conflict resolution process in which an impartial third party assists participants to negotiate a consensual and informed settlement..." of a family dispute. "Mediation" occurs when the participants to a dispute sit down with a neutral third party, who is trained in the law involved with the dispute and also in techniques of dispute resolution. The mediator helps the participants work out their own solution to the dispute. The most commonly recognized category of family mediation is "divorce mediation". Divorce mediation involves two parties who have decided to get a divorce sitting down with a trained mediator to work out the terms to be included in their decree of divorce.

By definition then, the family mediation process is voluntary. All sides to the dispute must agree to participate or mediation cannot take place. The essence of mediation is that the participants maintain control over the decision making process. The parties themselves make the critically important decisions about the future lives and their families rather than allowing others to make those decisions for them - be they judges, attorneys, or custody investigators - as often happens using the traditional legal approach.

Who Are The Mediators?
The mediators are individuals who have been trained are in the area of law involved with the particular dispute and also in techniques of dispute resolution and interactions between individuals. Family mediators have typically come from either the legal or the mental health professions. The ideal mediator, at least for a complex family dispute, is half attorney, experienced in family law in the particular jurisdiction, and half counselor, trained to the Masters Degree level or above. Few such individuals exist, however. It has been found, moreover, that mediation is a field very much separate onto itself and that the greatest predictor of effectiveness by a mediator is not academic training but actual experience in mediating similar disputes.

For less complex cases anyone can be an effective mediator after some training in dispute resolution techniques. Many effective and successful mediation programs have been in the area of parent-child, landlord-tenant and automobile-dispute mediations. Such programs often use volunteer mediators who have had no training except in simple mediation techniques, but who have had a breadth of life experience involving the matter in controversy, i.e. as a parent, a tenant, or car owner or mechanic.

How Does the Mediation Process Work?
The essence of the family mediation process is its structure and its neutrality. If the mediators have nothing more to offer than a structured and controlled setting which allows the parties to sit down to discuss their dispute in the presence of a neutral third party, they have already provided a great deal. Such a controlled dispassionate setting, allowing the parties to negotiate directly with one another, is often lacking under the traditional adversarial approach.

Hopefully, however, the mediator will have more to offer. Some possibilities include: alternative and creative suggestions about the areas in controversy; techniques to help the parties put aside their emotions and concentrate on the dispute at hand; information about the legal system and possible outcomes in court; examples of ways in which others have resolved similar disputes; information about methods of using advisors, appraisers, or other experts to assist the decision making process.

Generally speaking the family mediation structure is fairly predictable. In divorce mediation the first session is typically spent understanding the mediation process and agreeing on the ground rules. The next few sessions are spent gathering data, to get all essential information onto the bargaining table, and also in setting forth initial negotiating positions. The parties then get down to the hard bargaining process, which may take a lot of time or little depending on their particular styles, personalities, and the issues involved. Experts or advisors can be brought in at any stage to help clarify the issues, and this often happens. Once the bargaining has progressed successfully, the process generally turns to the details of the agreement and its formality

Some relatively simple divorce mediation cases may take as few as one or two sessions to resolve. It is rare for a divorce mediation case to take more than eight to ten sessions. The sessions will typically be one and one half to two hours in length. It generally becomes clear within the first few sessions whether progress is being made, although there are some cases where one party or the other will terminate the mediation process at an advanced stage. Statistically, over 70% of individuals who begin mediation end up with a completed mediation agreement, while over half of the remaining 30% settle before they actually get to court.

Improved Cooperation and Compliance With Agreement.
The most impressive results of family mediation come in the areas of improved cooperation between disputants and better compliance with the agreements entered into in the mediation process. In the most comprehensive study to date, in Denver, it was found that 70 percent of successful mediation participants felt they were more likely to be able to resolve subsequent problems without resorting to court. Over 85 percent reported that their ex-spouses were generally complying with the terms of their agreements, as compared with 30-40% of the non-mediated group who were not complying with their court orders within three months after they had been entered. 71% of the successful mediation participants felt that the process helped improve communications, 59% with anger levels, 74% with cooperation, and 52% with better understanding each others positions. Even 25% of those involved in unsuccessful mediation efforts agreed that there were improvements in such areas.

In cases involving children where a successful divorce mediation agreement was reached, the children were seeing their non-primary parent an average of 8.8 days a month after the divorce. This compared with an average of 5.2 to 5.6 days a month for individuals not going through the mediation process. Such findings are particularly significant in light of studies indicating that predictable and frequent contact with the non-primary custodial parent is associated with better adjustment by the children after divorce. (e.g. Wallenstein and Kelly, Surviving the Breakup, Basic Books, 1980.) The association is particularly strong where the primary parent (generally the mother) approves of the father's continued role, and when the child is a boy. Mediation favors joint custody arrangements. Such arrangements are often more conventional that the label implies, however, with the responsibility for the day to day care of the children generally remaining with one parent or the other, more often the mother.

Precautions.
The primary precaution to be aware of in the field of family mediation involves the lack of certification of qualifications of family mediators. Because there are many different kinds of family mediation it is difficult to know who is qualified to handle any particular type of case. Most experienced mediators are members of the Association for Conflict Resolution (ACR), which has a special category of members for Advanced Family Practitioners. Even such affiliations, however, do not necessarily indicate expertise as to any particular kind of family mediation, so be sure to ask up front what the qualifications of the mediator are. Personal knowledge of the particular mediator and knowledge of his or her proficiency with similar types of cases are the best guarantees of success.

Generally speaking family mediation is not appropriate in a case involving domestic violence or an abusive relationship between spouses or other family members. Abusive individuals may attempt to use mediation as a last-ditch effort to maintain control over an abused family member. A qualified family mediator, trained in recognizing the symptoms of such a relationship, should be able to recognize such tactics and take appropriate action. The mediation process is not likely to be successful in such circumstances, however. And there is a potential for real damage with an unqualified or inexperienced practitioner. This has been an area where mediation has been most criticized, and rightly so.

Conclusion.
As a voluntary process family mediation does not work in all cases. It does work in a great many cases, however, and when successful it provides an alternate to the traditional litigation methods of dealing with family legal disputes. When it succeeds family mediation can provide a more satisfactory, less expensive and less traumatic alternative. And if the statistics can believed, even an unsuccessful mediation effort can result in long term benefits for the entire family, by increasing cooperation between the family members in dispute and focusing them upon their mutual interests and the needs of the children rather than upon their own emotional state.