Kids in Divorce Blogs

5  The disadvantages of divorce and family mediation

Divorce mediation is obviously not without problems. For instance, because a divorce mediator is seen as a neutral third party, he obviously is in no position to advise a party personally.

The most important criticisms of divorce mediation are:

5.1       The shortcomings of the mediator

Mediators themselves can have a negative impact on the mediation process, especially where they don't have a legal background and the disputes at large include both child and legal matters. This creates issues where two mediators need to mediate a dispute, which have a bearing on the costs. Thus, if individuals are interested only in mediating a custody or visitation problem, they might select a mediator who is skilled as a psychologist or social worker. If parties have a problem resolving spousal maintenance or child support, they might select a mediator who has experience as an attorney, accountant or financial planner. Finding a mediator with all the necessary skills can be difficult. A mediator's professional training may further influence his or her neutrality or impartiality. Since mediators from different professional backgrounds are presently involved in mediation, this necessarily gives rise to the following problems for example mediators who are trained in the behavioural or social sciences tend to play a more active role in facilitating the parties' agreements on the best interests of the children, but what about the law?

5.2       Divorce mediation is inappropriate where parties do not have equal bargaining power

According to critics, divorce mediation only reinforces the unequal bargaining power that may exist between divorcing parties. They hold that, in the mediation process, the stronger party may dominate and intimidate the weaker party thereby forcing the weaker party to agree to provisions which will benefit the stronger party at the weaker party's expense. According to Winks "Divorce mediation: a non-adversary procedure for the no-fault divorce", feminists feel strongly that women, in particular, are prejudiced by the mediation process, since socially and financially women are generally in a subordinate position to their husbands, a fact which they feel mediators do not take into account.

5.2       Divorce mediation is inappropriate in cases of family violence

Divorce mediation is totally inappropriate in cases of family violence. Women, who are usually the victims of this violence, has a physiological disadvantage and powerless against a husband in the mediation process and will be unable to negotiate fair settlement agreements for themselves. Abusers may also avoid criminal-law sanctions for their actions if their divorce is not dealt with by the courts, but settled privately in the mediation process where all disclosures of the parties are confidential.

5.3 Mediators cannot always be impartial and neutral

Mediators cannot always be impartial and neutral, and every mediator has his or her own perceptions of what is fair and right, linked to his or her cultural background, education and training. A mediator's cultural background may give rise to problems if it is not the same as that of the parties in the mediation process.  Where mediators are for instance part of a dominant cultural group they may try to impose their values and principles on the parties.

5.4 Mediation does not offer the same safeguards as litigation

A fear is often raised that mediation, as an informal process, does not offer the parties and their children the same safeguards as the adversarial system of litigation. In mediation, no formal legal process is in place to ensure the parties' procedural rights, such as the disclosure of all relevant documentation and the testing of evidence for accuracy. Another concern is that the parties have less access to attorneys and advocates in the mediation process and are therefore denied the protection of legal representation. Critics worry that mediation does not offer the parties and their children the same just and fair results as traditional litigation in the courts does.