Mediation – The Magical Elixir?

Is anyone really truly surprised upon hearing that their good friend’s previously admirable, angelic family life has suddenly been torn apart in a court sanctioned divorce battle, not unlike those scenes of vultures ripping at carcasses in the wild?  Despite general knowledge of this trend – and despite the tremendous growth of alternative options available to separating couples today – people still routinely choose to fight it out in the adversarial system of litigation.  Why?  Is this just innate human stubbornness, a broken legal system, the result of stress overcoming better judgment, overall societal resistance to change, or a factor of economics?  Although an interesting question in itself, we’ll have to shelve that one for a rainy day.

What I wish to share here is something more positive.  It might not a miracle pill, but the more it’s studied, the more it does resemble something quite powerful.  As most mediators know, the process of mediation is unique in our current system of conflict resolution in that it aims at actually resolving conflict on a more holistic level by promoting increased understanding and paving the way for an ongoing ability to confront disputes in a less destructive and more productive manner.  Does this make mediation a magical elixir? Maybe, at least when it comes to family law disputes.  The more you look at the effects it has, the more you realize it’s not only one of the best deals out there to help you work your way through the disputes that arise in divorce, but it actually might benefit you for years to come in ways that you might not expect.

The Study

I’ve recently come across a striking study, one not altogether new, but not that publicized as far as I know, about the long-term effects that resulted from just one relatively short, 5-hour mediation, participated in by divorcing parents at the beginning of their divorce.  The study, lead by Robert E. Emery, PhD of the University of Virginia, showed startlingly strong and positive results to the ongoing parent-parent and parent-child relationship after parents participated in just a brief, but well-timed facilitative process of mediation.

The study worked with a group of families who had all filed for a contested custody hearing, who were all generally young and low income, and who all agreed to be randomly assigned by a coin-toss to either participate in mediation, or not, before continuing in the standard adversarial process of the legal system.  The families were studied for 12 years.  The half who flipped “heads” participated immediately in a 5-hour (on average) mediation that was facilitative, problem-focused and also sensitive to emotions.  (Note: this is opposed to the typically, solely evaluative “mediation” procedure done now more commonly in California courts – which could be another topic of its own for another rainy day.)

Results of the Study Re: Settlement Rates

For the group who tried mediation, over 80% of them successfully reached a voluntary mediated agreement at the conclusion of mediation.  Moreover, of the less than 20% who did not reach an agreement in mediation, half of them (50%) still settled out-of-court after mediation without the need to go through a court trial – which is generally the apex of the conflicted and most painful divorce battles.  This meant that only about 10% of the total “heads” group ended up needing to proceed to trial.  On the other hand, of those who did not mediate at all (the “tails” group), 75% of those families proceeded to trial, where a judge resolved their disputes for them.  Also, this non-mediating group’s settlement rate outside-of-court (between themselves and their attorneys, i.e., resolved short of going to trial) was only about 25%, unlike the group who tried mediation and failed to resolve it there, who resolved their dispute out-of-court at the rate of 50%.

So what does this mean?  For those who tried mediating their dispute, even briefly, there was a 90% as opposed to 25% chance of resolving their dispute either more amicably in mediation or at least without a court trial.  And even for those few parties who tried mediation and failed to resolve their dispute in the mediation, they were still twice as likely to settle among themselves or with the help of their attorneys before having to resort to a court trial.  Such pretrial settlements, whether in mediation or between parties and/or their attorneys, typically save enormous amounts of time, traumatizing stress and sometimes vast amounts money.

Results of the Study Re: Parental Assessments & Relationships with the Children

Another striking result was that 12 years later, among the group who mediated (regardless of their success in mediation), the custodial parent (i.e., the parent in each family who maintained the larger overall time with the children) on average “graded” the other parent significantly better in every category of parenting than the custodial parents in the non-mediating group.  (The categories of parenting included such areas as discipline, dress/grooming, religion/moral, errands, celebrating holidays, significant events, school/church, recreation, discussing problems and vacations.)  The parties that did not mediate gave grades generally below the 50th percent mark, while parents who did mediate gave grades generally at or above the same midway mark.

As for the resulting effect on the actual visitation between the non-custodial parents (the parent having the lesser overall amount of time with the children) and their children, the study showed an interesting trend of increased involvement as compared to the group who did not mediate.  The study indicated that not only were parental assessments higher or more positive towards the non-custodial parents, but the amount of visitation between the non-custodial parents and their children as a whole also stayed routinely higher and did not decline at the end of the 12-year period, as tended to happen in national averages over the same period of time, and as tended be weighted towards less frequent visitation in the “tails” group who did not try mediation.

Similarly, but with an even more impressive disparity in results, the study showed that mediation had the effect of resulting in significantly increased regular phone calls between children and parents in each group.  It showed that the vast majority of the non-custodial parents in the “heads” group (the group who tried mediation) continued to have phone calls with their children at least weekly at the end of the 12-year period, contrasted with the vast majority of the “tails” group who’s non-custodial parents only had phone calls with their children once a year or less.


What this study highlights is the beneficial results that have come in a group of family custodial disputes, seemingly from the sole and random factor of simply having been assigned to participate in 5-hour average mediation, even a decade after the mediation.

Can the study be picked apart and could other factors be playing a part?  Of course, and this study certainly begs for ongoing and larger scale research to be implemented on the effects of mediation, but regardless of skepticism or critique, the indication is clear that mediation is a powerful process from which most parties benefit greatly– and for a much longer time than most other magic elixirs have claimed.  It seems that even briefly participating in a facilitative mediation early in the process can have long-lasting and profound effects on both the relationship between the parents themselves, and simultaneously on that of each parent with their own child. 

Is this to say that litigation is always bad? No – not necessarily; certainly sometimes it is the best option, but it should always be carefully utilized, with ongoing reflection on ensuring that it is appropriately serving the parties’ own goals and interests.  For anyone going through a divorce or separation, with or without children, or for those even considering separating, facilitative mediation with a knowledgeable mediator should always be considered – and the earlier the better.  The immediate and longstanding effects of participating in even a brief mediation are simply too positive to ignore.  There is little to nothing to lose, and a wealth of long lasting benefits to gain.

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