to make their own decisions. Although some forms of
mediation may address underlying interpersonal or
individual problems, mediation is unlike marriage
therapy because it does not aim for reconciliation.
The goal of mediation is for the couple to reach a fair
settlement that allows the marriage to be dissolved.
As of 1994, five states (California, Maine, New
Mexico, Oregon, and Wisconsin) required mediation
as a mandatory first step in resolving child custody
disputes, while seven states (Alaska, Colorado, Con-
necticut, Illinois, Iowa, Kansas, and Louisiana) pro-
vided for mediation as part of the state family courts
on a discretionary basis, depending on the nature of
the divorce disputes. As of 1999, some states still did
not have statutes regarding mediation but allowed in-
dividual jurisdictions within those states to enact local
rules, whereas in other states (Michigan and New
Hampshire) mediation was voluntary, that is, the
courts mentioned its availability to the parties in-
volved.
In addition to court-based mediation, there is
now a growing use of mediators in private practice.
While court-based mediators often are social workers
or other mental health professionals, private media-
tors tend to be attorneys, many of whom have also
served as divorce attorneys. As divorce mediation be-
comes a ‘‘growth industry’’ for attorneys, questions
have arisen about the appropriate role for lawyers
and the potential ethical dilemma of dual representa-
tion. Researchers have raised questions about the ap-
propriateness of mediation in cases of domestic
violence or abuse. Mediation also may not be appro-
priate when other severe power imbalances exist be-
tween the two parties, such as in cases of alleged child
abuse or neglect, mental health problems, or border-
line intellectual functioning.
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 be-
fore the agreement is presented to the court, a pro-
cess 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 litigat-
ed settlements, especially among those that are
reached out of court. Finally, couples may ‘‘self-
select’’ for mediation or litigation based on such fac-
tors 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 sta-
tus tend to select mediation, particularly private me-
diation).
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 lit-
erature, from 50 percent to 85 percent of mediated
divorces reach agreement and most studies report
agreement rates in the upper part of this range. Set-
tlement rates are equally high for all forms of media-
tion and do not vary according to the amount of time
the mediation required. Mediation also substantially
reduces court caseloads by diverting some couples be-
fore they reach the court. Reports from Los Angeles
County in the mid-1980s, shortly after California be-
came 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 re-
turn 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 mediat-
ed 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 paymentsMEDIATION 253