The Limitations of Mediation/Martin Rosenfeld

Posted on November 17, 2011


There was a recent article at (an excellent source of mediation information) entitled “Mediation:Why Haven’t We Come Further?”.  Nine factors are outlined explaining why mediation has to face certain built-in brakes on its potential popularity with the general public.  I too often think of this question regarding the limited role of divorce mediation.  I will limit my analysis of mediation’s challenges to three factors.  In no wise, however, do I agree with these three concerns, but I do think they exist in people’s minds, for better or worse.

1.  Divorce mediation offers a couple a sensible and civil way of resolving issues and attaining closure through reasonable behavior.  Some prefer reprisal and revenge to civility, even where the latter is more in their interest.  How many people will argue that they are fighting over divorce issues as a matter of principle? Answer:Too many.  Not everybody desires a resolution of their divorce issues.  Some do prefer litigation to mediation, as strange as that seems.

2. We are conditioned to go to legal personnel when issues arise that have legal ramifications.  There are still too many people who believe that a divorce process requires the “blessing” of an attorney.  It is ironic that people with less education tend, in greater numbers, to try to go through their divorce as pro se parties.  While legal advice is wholly appropriate for all,  the idea of proceeding without an attorney to exclusively handle all aspects of the divorce is one that can be very constructive.  (This topic is too broad for a discussion in this brief post.) By ceding control over one’s divorce to a non-mediating attorney, a party is depriving themself of a process that can be healing and civil.

3.  I sometimes Google an issue in mediation, and find Goole asking me “Do you mean meditation?”.  Litigation probably goes back to the dawn of mankind.  Mediation, as a school of thought, might be no more than thirty years old.  It deserves better publicity, P.R. and advertising.  Perhaps this will change in the years ahead.  Many people are simply unaware of divorce mediation. But at least YOU know about mediation…

It is sad that divorce mediation is not utilized more often.  If I had to make an analogy, I would pose the following question: which tastes better, junk food or nutritional food?  But which is more conducive to good health?  Sometimes, the disciplined approach is well worth the effort.  Mediate, don’t litigate.  If you make the wrong decision, you will not be giving yourself the best chance for a successful future.  The present system of litigation in divorce, has little to show for its centuries of use.  Give yourself the best chance for a successful future; mediate your divorce.  You will not regret the decision.