Nearly a decade ago, after his own divorce and 22 years as an attorney left him "angered and appalled at the destructive and expensive way the court system works," O.J. Coogler set out to create "a better way to resolve the divorce conflict."
His solution: divorce mediation, a process in which a trained mediator helps splintering spouses formulate their own separation agreement. Unlike the traditional adversary system, "which encourages divorcing spouses to fight," the late attorney said in a 1981 interview, mediation helps the couple "work together." As a result, claimed Coogler--who died last year--ex-spouses are more likely to be able to deal constructively with one another in such necessary business as child visitation and support payments.
Today Coogler's idea has become a booming industry--not surprising in a society where, if current trends continue, half of all recent marriages will end in divorce. While some claim the mediation movement will help ease the emotional and financial trauma of divorce, others contend that mediation is being embraced too rapidly, to the detriment of those involved.
Over the last five years about 4,500 people have been trained as divorce mediators, estimates attorney Larry Ray, staff director of the American Bar Association's Special Committee on Alternative Dispute Resolution. "About a third are lawyers," says Ray, "about a third are from the social-service field and the last third are from a variety of other areas"--from labor arbitration to education.
The divorce mediation explosion is one part, he says, "of a burgeoning search for alternative methods of dispute resolution. Chief Justice Warren Burger urged the increased use and study of alternative methods such as mediation, conciliation and arbitration in his Annual Report on the State of the Judiciary last January. And Justice Sandra Day O'Connor also has spoken out in favor of such alternatives."
This push to find alternatives to the adversary system is prompted, Ray says, "partly by the court overload . . . and partly by the feeling that these alternatives are just better ways to go about resolving some conflicts."
Another reason, says Nancy Thoennes, research coordinator of the Denver-based Divorce Mediation Research Project: "The whole change towards a no-fault orientation to divorce. Today there's more of a tendency to think that both people are sane, rational parties who are capable of making decisions about what will happen to their families after they divorce."
Mediation is becoming part of the legal system "in pockets around the country," notes John Haynes, a professor of social welfare at the State University of New York at Stony Brook and president of the 1,200-member Academy of Family Mediators. "Three states have some form of mediation legislation, and about a dozen more are considering it."
In California, parties whose cases involve child custody must go to mediation for at least one session. In Michigan mediation must be available to such couples beginning this July.
"Interest is spreading to other countries, says Haynes. "My book (Divorce Mediation: A Practical Guide for Therapists and Counselors) has just been translated into Dutch. Our association has mediators in England, Israel and Germany."
But despite mediation's many advocates, it's detractors feel the procedure is being pushed too fast as a panacea.
"I know cases where people have lost their legal rights by going through mediation," says Joanne Schulman of New York's National Center on Women and Family Law. "Before mediation the parties had to sign an agreement not to pursue spousal support. The mediation broke down, and the woman had lost her right to go to court."
Unlike the court system, which can subpoena documents that will prove each party's total assets, "in mediation," Schulman says, "you have to take it on faith. Mediation is big business. People want to cash in on it, but there are no uniform standards or even requirements for training. Anyone can call themselves a mediator and take clients."
At the 14th National Conference on Women and the Law held in Washington in April, Schulman's group distributed flyers declaring "Mediation Hurts Women." Among their contentions: "Mediation is not appropriate for any divorce and family law dispute . . . In order for dispute resolution to be appropriate and effective, the parties must have equal bargaining power, the mediators must be neutral, the issues must be capable of being compromised and confidentiality of communication must be protected.
"Women do not have equal bargaining power. They have less economic resources than men . . . Few mediators are neutral . . . Mediation does not address or punish past behavior . . . There is nothing to negotiate or compromise about with respect to woman battery, or child custody or child abuse . . . Often the communications with the mediator are not confidential . . . In some programs mediators must make recommendations to the court and testify."
Schulman is particularly alarmed at "the trend to use mediation in cases involving domestic violence, which gets battery treated as an interpersonal problem, not as a crime."
Legislation mandating mediation, she says, is "particularly harmful. Even the mediators say it can't work unless it's voluntary. Yet in states like California it's mandatory that the couple learn about mediation. If someone doesn't want to mediate it makes them seem unreasonable. It's being set up in a way that denies people access to the courts."
Even those who are pro-mediation cite concern over the lack of standards in the burgeoning field. "It's pretty clear that things can be done under the guise of mediation that is actually not true mediation," says attorney and mediator Michael Lewis of the National Institute for Dispute Resolution. "That can hurt people."
"Those of us who think it mediation is a useful process would like to see some parameters set," says Thomas A. Bishop, chairman of the standards sub-committee of the Mediation and Arbitration Committee of ABA's Family Law Section. "Certification is a hot topic. Should mediators be therapists or attorneys? Who would enforce standards? Can you sue a mediator for malpractice?"
Trade associations of mediators often set their own standards for members, and several groups--including the ABA and the Association of Family and Conciliation Courts (AFCC)--are working on certification standards for mediators.
Among the questions the AFCC is working to answer, says social worker Anne Milne: "Should mediation be viewed as a separate profession or a technique used by many professions?" "What are the minimum qualifying standards?" "How can we define the system of regulation and training?"
Like the girl with the curl on her forehead, "mediation can be very, very good or a disaster," Washington attorney Rita Bank told participants in a Divorce Mediation workshop at the Women and the Law Conference. "Bad experiences always seem to involve a mediator who manipulated one person or the other."
When it works, says Bank, who represents clients going through the mediation process, "People often feel much less ripped off since they control, to some extent, the process. And they may be more willing to abide by an agreement they have produced themselves."
While mediation "does seem to cost less than the traditional system," she says, "it's not substantially less when done properly, with two separate lawyers. My experience is that mediation is shorter."
Those considering the alternatives, she says, should remember that "nobody wins in court. Everybody loses--the children most of all.