This Article Originally Appeared on Mediate.com.
The rise of family mediation in America has been remarkably successful, considering that the first generation of pioneers within our field began practicing professionally only some forty years ago. As mediation for family matters prepares to achieve prominence as the obvious first-line remedy to resolve family conflicts—such as in divorce and child custody matters— the overall benefits of mediation are being increasingly recognized as more advantageous than litigation, for most disputes.
However, litigious attitudes in our society have increased, rather than decreased, over time. Somewhere along our nation’s history of trying to resolve conflicts by setting up contests within the court system, we lost confidence in our abilities for resolving conflict by simply “talking it out with each other.” But, when people are unable to talk it out on their own, mediation exists as a suitable and important first-option to consider, so that productive lines of direct communication may remain open between family members. This maximizes opportunities for the best resolutions for future disputes, as well.
Attempting voluntary mediation initially would prevent countless family matters from unnecessarily being litigated in our nation’s courtrooms. Moreover, research has documented that family matters which are litigated once tend to be litigated repeatedly, since each round of litigation increases the disharmony between the disputants. Thus, mediation needs to be recognized as a first and primary intervention to begin “talking it out” early on and resolving conflicts before they become entrenched within a system that encourages escalation—it just makes sense.
A number of years ago, a group of mediators in southern California observed that mediation had, since its modern reiteration, lived in the category of “Alternative Dispute Resolution,” along with arbitration, private judging, settlement conferences, and others, but unquestionably behind “Litigation” as the “primary” form of dispute resolution in our present culture. As mediation came into its own as an effective approach, with little to no downside, the group proposed promoting mediation as the primary methodology, and demoting litigation to a secondary status. Further, they suggested changing the term, “Alternative Dispute Resolution,” to “Consensual Dispute Resolution.” This term implied all the qualities of mediation—a voluntary, client-empowered, non-coercive intervention that avoids the personal and political biases potentially inherent in arbitration and other evaluative methodologies. But, as we all know, changes in the law and in the court system occur at the speed of molasses, and, thus, we need a spark to set in motion this natural evolution.
The Academy of Professional Family Mediators (APFM) recently became the first major organization to endorse The National Mediation Policy Act, a seminal national effort to improve the sanity of discourse in our country by suggesting, as a matter of policy, that we manage and resolve our conflicts by first using an intervention approach that can preserve the integrity of our interpersonal relationships. As of this writing, the Association for Conflict Resolution (ACR), TheNational Association for Community Mediation (NAFCM), and Mediators Beyond Borders (MBB) have also offered their endorsement of this Act
We applaud this initial step toward bringing mediation into our society’s consciousness as The Primary Modality for conflict resolution. The time is now to propel the family mediation movement forward to a place of such prominence. To that end, we support Mediate.com’s initiative to enact a National Mediation Policy Act.
The suggested language of this initiative is simple and clear:
“It is the policy of the United States that, when two or more individuals or entities are in protracted dispute, it is preferable that such disputants actively and voluntarily take part in solution-seeking mediation, rather than allowing the dispute to remain unresolved or result in costly litigation, continued conflict, and elevated risk of violence.”
Voluntary mediation is preferable to litigation: This is a fundamental values statement that we believe our nation can support. It reflects a necessary shift in how Americans need to think about their options, by promoting mediation as the primary methodology for resolving conflicts, and demoting litigation to a secondary status.
A national policy preference for mediation may be just the spark that inspires the shift for bringing mediation to the forefront. It is a sensible shift. It is a meaningful shift. It is an important shift of consciousness and practice that is needed for our current times. As family mediators, we know how the use of mediation has the magical quality of preserving long-term relationships while resolving the present dispute before them.
In mediation, there are no winners or losers. And, because we work carefully to ensure that each participant feels heard and validated, mediation allows the disputants to continue life with their current dispute resolved, or at least effectively managed, and with their relationship respected. Litigation has the opposite outcome—both sides slandered, respect destroyed, lingering anger, hatred, and frustration at not being heard or understood for years to come, and, at great cost. Moreover, since over 95% of family litigation cases ultimately resolve by settlement—on the courthouse steps and not by trial—all the preparation, escalation, and rising tensions in the process leading up to settlement often permanently erode the communications and relationship between the parents, and hurt the children, in the process.
We urge mediation organizations and individuals everywhere to support this National Mediation Policy Act. Together, we can raise our collective voice and move closer to the vision of the original pioneers of family mediation in America, a vision that is shared by a new generation of 21st century mediation pioneers—to reverse the order of preference for conflict resolution approaches. Mediation must ascend to the first, and primary approach for resolving conflicts of all kinds. If it fails to produce the desired result in any given case, litigation will always be available as an alternative.
Michael Aurit, JD, MDR, is President of the Academy of Professional Family Mediators (APFM), and is a professional divorce and family mediator and Co-Founder of The Aurit Center for Divorce Mediation in Scottsdale, Arizona. He also is an Adjunct Professor at Arizona State University’s Sandra Day O’Connor School of Law where he teaches divorce and family
mediation. Michael is a former Fellow of the American Bar Association Section of Dispute Resolution. He also currently serves as Ethics Chair of the Maricopa County Association of Family Mediators (MCAFM). Michael holds his Juris Doctorate degree from Pepperdine University School of Law and Master’s Degree in Dispute Resolution from The Straus Institute for Dispute Resolution at Pepperdine Law. He earned his Bachelor of Fine Arts Degree from The Boston Conservatory of Music.
Donald T. Saposnek, Ph.D., is a clinical-child psychologist, a child custody and family mediator and a national and international trainer and consultant in child psychology and mediation since 1977. He is the author of the classic text, Mediating Child Custody Disputes: A Strategic Approach, and co-author of Splitting America: How Politicians, Super Pacs and the News Media Mirror High Conflict Divorce. He is a Founding Board Member and Editor-in-Chief of the Academy of Professional Family Mediators’ publications and has published extensively in the professional literature on children, divorce, and mediation. He has taught on the Psychology Faculty at the University of California, Santa Cruz, for 41 years, and has been an Adjunct Professor at Pepperdine University School of Law, Straus Institute for Dispute Resolution, since 2009.