How Mediation Affects the Settlement Process

There are important limitations to studying the effects of mediation. First, the vast majority of divorce cases end in out-of-court settlements, with only 10 percent of cases going to trial. Other than mediation, settlements are reached out of court by negotiations between the parties' lawyers. In some mediation cases, each party's lawyers review the settlement before the agreement is presented to the court, a process that still involves lawyers and the courts. Second, the prevalence of privately held mediations is difficult to measure, because no reporting is required and the divorce judgment often does not indicate whether the settlement was arranged by a private mediator. Thus, it is sometimes hard to compare mediated and litigated settlements, especially among those that are reached out of court. Finally, couples may ''self-select'' for mediation or litigation based on such factors as the degree of conflict and cooperation (more acrimonious disputes and less cooperative couples tend to bypass mediation) and socioeconomic factors such as employment, education, and income (parents with higher income, education, and employment status tend to select mediation, particularly private mediation).

Much of the research evaluating mediation has shown positive results, but there are some notable gaps. Mediation appears to improve the rate at which couples reach agreement. In a 2000 review of the literature, from 50 percent to 85 percent of mediated divorces reach agreement and most studies report agreement rates in the upper part of this range. Settlement rates are equally high for all forms of mediation and do not vary according to the amount of time the mediation required. Mediation also substantially reduces court caseloads by diverting some couples before they reach the court. Reports from Los Angeles County in the mid-1980s, shortly after California became the first state to mandate mediation, suggest that custody hearings may be reduced by as much as 75 percent. Evidence also supports the lower cost of mediation compared with litigation, and, because the settlement was reached cooperatively, mediation may reduce the number of couples who return to court, that is, the rate of relitigation. This is an important consideration in light of reports that as many as one-third of all litigated divorces involving child custody typically return to court within two years.

The evidence for the effects of mediation on reli-tigation rates is nevertheless mixed. One study that tracked couples for two years found that those who reached a divorce settlement through mediation were less than half as likely to return to court than those couples whose settlements were court-ordered. Also, mediated divorce settlements were reached in about half the time. In another two-year study, couples with mediated agreements were six times less likely to return to court than those whose disputes were settled in court. Although little research has followed couples beyond the two-year postsettlement period, one study tracked couples over a nine-year period but found no differences in relitigation between those who mediated and those who litigated the initial settlement. There was, however, a relatively high attrition rate of 48 percent, which is to be expected after nine years. There are other studies that have also reported no differences in relitigation rates.

Typically, after the initial settlement is reached in litigation, the custodial parent faces the possibility that the noncustodial parent will not comply with the court order, including both child support payments

Married couples wanting to separate may prefer mediation over the more detailed legal process of divorce for many reasons. Mediation varies widely, it is relatively brief, and focuses on the task of reaching settlement rather than improving adjustment. (Scott Roper/Corbis)

and custody arrangements. Because mediation is more cooperative, parents should show higher levels of compliance. Research supports this notion: In practically all studies, parents who used mediation reported fewer difficulties with compliance.

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