Marital Mediation: Advantages, Process and Obstacles

The mediator helps the parties understand what is happening to them and encourages the parties to negotiate in good faith and to enter into arrangements that will be enforceable in future years.[1]Marital mediation is a type of private mediation practice that deals with marriage-related issues.

Robert Coulson, president of the American Arbitration Association, says in his book Fighting Fair, “Mediation encourages families to fight fair. It enables them to control their own disputes.[2]

Divorce is the dissolution of the marital bond, either mutually or otherwise, by order of a competent court. In the pre-litigation stage, if the parties consider it suitable or the court finds it reasonable, the parties are advised to take to mediation. For a divorce case, the best way to settle a dispute is through meditation. The process of mediation in divorce cases is the same as that of any mediation.

The parties, alone or with their lawyers, designate a mediator who acts as a neutral third party. In cases of divorce mediation, the parties generally call for private sessions of mediation with the mediator. The role of the mediator is, however, passive because his work is restricted to presenting whatever the party desire. However, in certain cases, the mediator acts as a facilitator to prevent the marriage from being annulled.

Advantages of Mediation in Marital Cases

1. Mediation is an affordable method of dispute resolution. It is best for mutual divorce cases because the parties can forgo the long hours at the court, and it is friendly to their pockets. Furthermore, since the order of the mediator is the same as that of the court, the process is speedy.
2. The process of mediation is party-based. The time and place as decided by the parties according to the time that they find suitable. Furthermore, the process of mediation is best suited for deciding over alimony and compensation.
3. Mediation is a confidential process. Generally, in marital cases, the mediator does not allow the right of an audience because the matters are extremely secret in nature.
4. Mediation is a client-driven process. The mediator will never present an award which is contradictory to the desire of the parties.
5. The environment in mediation is favourable to the parties in a marital dispute. A conducive environment is best suited for disputes in the case of highly charged parties.
6. Mediation allows the presence of an advocate. It is essential for the advocate to carry his power of attorney with him. The advocate is helpful in giving legal advice when the parties require it.
7. Seldom if any, when the mediation is successful, and the parties to a dispute decide on continuing their conjugal relation, it facilitates the parties to understand their differences when advised by a mature and experienced veteran.

Mediation is not always successful in this case. For example, in cases of domestic violence, the mediation sessions often end up in heated arguments, which further make bitter the relationship between the parties. In mediation sessions, the parties are on equal footing. Nobody is in a position to dominate the will of the other. Since mediation depends on the parties, the parties are free from the influence of the argumentation of the advocate.

In domestic violence cases, the victim party has a better opportunity of receiving compensation because the mediator will not order anything that the parties are opposed to. Mediation is advised for marital cases in both the pre-litigation stage and during the time of the litigation process.

The only essential requirement for a mediation process to commence is the presence of the parties. The parties are the sole runners, and the process continues on their own will. The outcome of the mediation process depends solely on the party’s willingness to settle the dispute. However, in certain cases where settlement seems impossible in the beginning, post-mediation can result in proper settlement.

The Process of Mediation

The approaches taken up are different for different mediators. Usually, mediators start by explaining the process of mediation. The parties are allowed to introduce themselves, after which the mediators ask for the background of the case. Basic information like the Code in which the marriage was registered and the point of dispute is often asked by the mediators. During the mediation, the mediator can call for a coccus wherein the party can share their confidential information, which they are not free to share in front of the other party.

In cases of violence, the victim party can even be intimidated into sharing confidential information in the presence of the opposite party. Coccus helps the mediator understand the actual story behind the dispute and thus facilitates the settlement of disputes. The mediator can even ask the parties to signify that they will not reveal anything that is said in the process of mediation. The work of the mediator Is to make the parties feel comfortable and create an environment conducive to meaningful interaction.

Ultimately the mediator tries to facilitate the finding of common ground between the parties, be it alimony or the custody of the child in divorce cases and finally presents an order stating whether the process of mediation was successful or failed.

“While there are numerous practical adaptations of the mediation concept, there are basically two schools of thought: “structured mediation”5 and “comprehensive mediation.”[3]

Structured

It starts with the orientation process wherein the parties sign a contract to abide by the rules of the mediation. The rules are decided and include a formal mediation agreement. Then the parties agree on the preparation of a financial statement.

The parties sign an agreement that requires them to show evidence of their present status, which would help the mediator to decide on the following four issues: spousal maintenance, child custody and support, and property division. They are generally long joint mediation sessions. The advocate acts like a veteran in giving legal consultation.

Comprehensive

In the comprehensive process, there are no rules made at the beginning of the mediation, nor does it entail the number of sessions required or the contract to be made. The comprehensive process needs not be a joint process throughout.

Collaborative Divorce Process

The process in which the parties deny the courtroom battle and want to peacefully collaborate and settle the disputes is known as the collaborative process. Collaborative advocates are hired who provide legal advice regarding the process of the law of the collaborative meditative divorce process.

The collaborative process is designed in a way to help the parties to come to a common ground with the help of their advocates and the other specialists and professionals, such as child custody specialists and neutral accountants, committed who give advice in a best-suited manner to help the parties prevent the courtroom drama and thus prevent the scope of litigation in the later years.

A “no court” agreement is signed between the parties and their respective advocates. The Advocates generally are fired in the instance that the case reaches the court. The role of the court is restricted to give a legal document finalizing the annulment of their conjugal relationship.

The only disadvantage of collaborative divorce is that the parties have to start all over again if the mediation is not successful. Thus entailing more money than they would in the case of a normal annulment or mediation process. There are corporations that provide effective collaborative services to the parties.

Lawyers in the Marital Mediation

Normally in cases of mediation with regard to Family law, the advocates are not allowed. The mediators request the presence of solely the parties. The advocates are kept away because the mediation session is aimed to be party-friendly and non-influential. The presence of a lawyer would entail that the presence of their lawyer influences the parties.

Furthermore, the lawyer is only allowed if he has the original copy of the power of attorney present with him at the tie of the process of mediation. The lawyer should only be present if the party thinks that the lawyer will represent him well. The process of marital mediation is a non-adversarial approach:-

“mediating family disputes requires a noncombative approach where the well-being of the family is the primary goal. Customarily, general practitioners, as advocates, approach the practice of law from the perspective of their client’s individual needs. But in the case of mediation, there are essentially two clients who want to resolve a dispute, and neither party’s position can be advocated over that of the other. Legal advice, for example, must be non-specific and directed in such a way that both clients benefit from the information.”[4]

In the report by William I. Weston, he mentions six basics of marital mediation, which are as follows:-

There are six basics of marital mediation:

1. The parties must seriously and honestly want to reach an agreement.
2. The parties must be willing to face each other, talk with each other and negotiate.
3. The parties must have confidence in the objectivity, integrity, and competence of the mediator.
4. All parties, including the children, are indispensable to mediation.
5. The mediator must not direct the clients’ attention in any particular way (called channelling) and must remain sufficiently detached to let the clients recognize the issues and make the appropriate decisions themselves.
6. The mediator must keep control of the process so the parties can deal with the issues in dispute.[5]

Child Custody

“The child custody decision is necessarily intertwined with the resolution of issues dealing with property distribution, spousal and child support, and visitation. Deciding child custody with the aid of mediation or counseling is an attempt to spare the children of a broken marriage some of the trauma which necessarily accompanies divorce”[6].

The child, in the case of divorce, is already in distress. When the child is brought to the courtroom, the psychology of the child is grossly affected due to the intimidating atmosphere. The custody of the child is best decided in an atmosphere that is peaceful so that the best possible way can be adopted for the child to enjoy a flourishing childhood and there is no impediment to the child’s growing up.

Obstacles to Mediation

1. The husband generally controls all the legal documents of which the wife is ignorant. They are also aware of their financial position. The husband dominates and prevents wives from effective compensation.
2. One party was to separate, and the other wanted to continue their conjugal relationship.
3. When it is impossible to bring the parties to a common ground where they can negotiate about alimony and compensation and child custody.
4. High Internal conflict wherein the parties are not in a position to negotiate without hurling abuses at each other.

Stress and Marital Relationships

There is a prevalence of stress in marital relationships. Various clinical stress symptoms have been detected, such as work and economical stress, which are a reason for the divorce. The main objective of mediation is to allow the parties to forget their differences and to reengage in conjugal relationships in a non-stressful manner. To combat stress in a marital relationship, mediation is the best option that the parties can adopt.

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[1] Weingarten, Helen R. “Strategic Planning for Divorce Mediation.” Social Work, vol. 31, no. 3, 1986, pp. 194–200. JSTOR, www.jstor.org/stable/23713195.

[2] ibid

[3] Coombs, Russell M., Russell M. “Noncourt-Connected Mediation and Counseling in Child-Custody Disputes.” Family Law Quarterly, vol. 17, no. 4, 1984, pp. 469–495. JSTOR, www.jstor.org/stable/25739352.

[4] Weston, William I. “Divorce Mediation: Cheaper for Your Client, but Dangerous for You.” Compleat Lawyer, vol. 4, no. 2, 1987, pp. 40–43. JSTOR, www.jstor.org/stable/23776080.

[5] Weston, William I. “Divorce Mediation: Cheaper for Your Client, but Dangerous for You.” Compleat Lawyer, vol. 4, no. 2, 1987, pp. 40–43. JSTOR, www.jstor.org/stable/23776080.

[6] Coombs, Russell M. “Noncourt-Connected Mediation and Counseling in Child-Custody Disputes.” Family Law Quarterly, vol. 17, no. 4, 1984, pp. 469–495. JSTOR, www.jstor.org/stable/25739352.

Originally Published on: Aug 11, 2019

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1. Meaning and Scope of Mediation
2. Role Play in Mediation Procedure