Two of the world’s most recognized experts in divorce research are Professor
Constance Beck and Professor Bruce Sales from the University of Arizona.
Here is an excerpt from their article, Critical Appraisal of Divorce Mediation
Research and Policy in Psychology, Public Policy and the Law (2000) pp
989-1056. Many of the research findings translate well into our practice of
Collaborative Law.
Increased Satisfaction
Mediation advocates claim that clients are much more satisfied with mediation
in resolving their divorce dispute than litigants who use the traditional court
process (Bautz & Hill, 1989; Benjamin & Irving, 1995; Emery & Wyer, 1987a,
1987b; Emery, Matthews, & Kitzmann, 1994; Kelly & Gigy, 1989; Kressel, 1985;
Kressel et al., 1994; Marlow & Sauber, 1990; Pearson, 1994; Pearson &
Thoennes, 1982, 1985b, 1988a, 1989). Anywhere between 60-80% of the mediation
clients report being satisfied (Pearson & Thoennes, 1982 [76%]; Kelly &
Gigy, 1989 [78% for men and 72% for women]; Kelly, 1989 [59%]). Few studies
report rates outside this range (Pearson & Thoennes, 1984b [90%]; Irving &
Benjamin, 1992 [33-50%]). On the other hand, only 30-50% of litigants felt
satisfied with their court experiences (Kelly, 1989 [47%]; Pearson & Thoennes,
1982 [42%]; Pearson & Thoennes, 1989 [30%]). Although those who reach
agreement are more enthusiastic, 30-60% of the clients who did not reach
agreement in mediation report they are satisfied (Kressel et al., 1994 [33%];
Pearson & Thoennes, 1986 [40-62%]). These patterns do not differ for users of
mandatory or voluntary mediation programs (Pearson, 1994). Thus, mediation
appears to be much more satisfactory than litigation for divorcing clients.
1030 BECK AND SALES
Although these findings are intriguing, there are a complex set of
methodological
questions that need to be considered to put the positive findings into a
reasonable perspective: What are the rates of satisfaction and reasons for
dissatisfaction
with traditional court processes; what are the appropriate comparison
groups; what point in time since divorce are the assessments of satisfaction/
dissatisfaction gathered; what are the specific questions asked regarding
satisfaction/
dissatisfaction; and are there gender differences in the findings? When the
research is scrutinized in light of the above queries, the satisfaction rates
are
equivocal.
Satisfaction and dissatisfaction. Although mediation proponents have found
in their studies that litigation couples are much less satisfied than mediation
couples, the degree of difference in satisfaction rates varies widely from
study to
study. In fact, evidence suggests that most people are satisfied with the
divorce
process they choose, regardless if it was mediation or traditional court
adjudication
(Keilitz et al., 1992; Pearson, 1994). For example, one study defined different
elements of the legal process and compared rates of satisfaction between
mediating
and litigating couples in four different states (Keilitz et al., 1992).
Researchers
found that the majority of litigants in both mediation and court adjudication
felt that they participated in a fair process that provided satisfactory
results.
Clients felt that their rights were protected (mediation 75%, litigation 60%);
the
process was fair (mediation 73%, litigation 55%); they got enough of the most
important things (mediation 74%, litigation 69%); and they were satisfied with
the
agreement (mediation 70%, litigation 52%) (Keilitz et al., 1992). There were,
however, significant differences between the groups in terms of assessments
about
the process, which generally favored mediation. Mediation litigants felt less
pressure to agree to things they did not want, felt less pressure to agree
quickly,
were most satisfied with the fairness of the process, and were less intimidated
by
their spouse (Keilitz et al., 1992). Although these findings are important,
they are
based on small samples and thus need to be replicated.
In another study, an attempt was made to distinguish litigation cases into
those where custody and visitation was contested, those cases which underwent
custody evaluations, and those cases where custody or visitation was not
contested
(Pearson & Thoennes, 1985a). It is reported that 50-60% of litigants who dispute
custody are dissatisfied. What is not reported is how many of these clients are
satisfied or are neutral about the process (Pearson & Thoennes, 1985a).
Likewise,
Pearson and Thoennes (1985a) reported that 40-50% of those clients who
undergo a custody evaluation are dissatisfied, but again we do not see results
concerning how many of these clients are satisfied. It could be that 50-60% of
these couples are satisfied (Pearson & Thoennes, 1985a). And finally, it is
reported that 40% of those who do not dispute custody are dissatisfied. Again,
it
may be that 60% of these litigants are then satisfied with the process (Pearson
&
Thoennes, 1985a; see also Irving & Benjamin, 1995). These results imply that
roughly half of all the litigants in each category, and perhaps more in the
uncontested category, may be satisfied with their treatment in the litigation
system. In fact, Pearson and Thoennes (1988a) indicated that there are similar
rates of dissatisfaction with court experiences and mediation.
Moreover, although the majority of people are satisfied with the divorce
process, some mediation clients, particularly those who reach agreement, may be
DIVORCE MEDIATION 1031
more so in some important ways. The litigation group figures are somewhat lower
than those for the mediation clients who reach an agreement, but very similar to
the mediation clients who do not reach agreement in mediation. If the mediation
clients were lumped together in one category as are the litigation clients
(i.e., no
division between those reaching agreement, partial agreements, or no agreement),
the upper limit of the satisfaction interval would be lower and thus closer to
rates
of satisfaction for traditional litigation. As noted below in the section
discussing
comparison groups, it is important to compare groups which are similar on
critical
characteristics (i.e., compare mediated agreements to lawyer negotiated
agreements,
compare failed mediation clients to clients who need custody evaluations
or have contested court hearings).
Although accurately measuring satisfaction is a complex undertaking, mediation
proponents argue that there are some common themes that run through many
of the parent satisfaction evaluations: 60%- 80% of litigants believe mediation
helped them to focus on the needs of the children; 70-80% believe it provided
them an opportunity to air grievances; and 70-80% believe mediation kept the
discussions on track (Lyon et al., 1985; Pearson & Thoennes, 1985c, 1986,
1988a). These results are surprising because in empirical analyses of actual
tapes
of mediation sessions, the interests of the child are rarely mentioned
(Dingwall &
Greatbatch, 1991). When they are mentioned, the children's interests are used as
a means of applying moral pressure to accept or reject a particular option, as
opposed to urging parents to consider the well-being of their children (Dingwall
& Greatbatch, 1991). As discussed above, airing greviances can be extremely
helpful for some couples while extremely detrimental to others (e.g., abusive
relationships, Fischer et al., 1993). And, analysis of taped mediation sessions
find
that mediators do much more than keep discussions on track (Donohue, Allen, &
Burrell, 1985). They actively direct conversations and, at times, heavily
influence
the terms of the agreements produced.
Since mediation is not widely understood by lay people, mediators need to
indoctrinate clients regarding the process and potential outcomes. In doing so,
mediators often state that their function is to consider the needs of the
children,
assist the parties in airing grievances, offer a less adversarial forum, and
keep the
discussions on track. The combination of findings outlined above suggest that it
is unclear if the satisfied parties are merely repeating what is told to them,
or
whether the mediation sessions of these satisfied clients are very different
from
those involved in the sessions taped and analyzed by Donohue and his colleagues
(1985) and Dingwall and Greatbatch (1991). This is an empirical question which
should be fully explored.
Finally, an important finding in this regard is that under all circumstances
programs that severely restrict the number of sessions available to mediation
clients may do so at the expense of client satisfaction and a fully
understandable
process. For instance, satisfaction was found to be the lowest at a mediation
site
where the intervention was a single 45-minute session that was devoted
exclusively
to calculating the child support information from legal guidelines (Delaware;
see Pearson, 1993,1994). When asked if they believed mediation was better
than a hearing with a master or a judge, over half (56%) of these mediation
clients
said no (Pearson, 1994). As noted by Abel (1982), satisfaction is likely to be a
function of how the clients are treated, the amount of time mediators spend with
1032 BECK AND SALES
the clients, and the degree of inconvenience required to attend sessions. Thus,
the
more "efficient" the institution, the less likely people will be excited about
using
it (Abel, 1982).
Obviously, there are clients who are dissatisfied with mediation. Kelly and
Gigy (1989) found in their sample from a voluntary, private, comprehensive,
fee-for-service mediation program, that 14% of men and 26% of women were
dissatisfied. Kelly and Duryee (1992) found that in a court-mandated custody and
visitation mediation program, 43% of the men were dissatisfied with the outcome
in contrast to 17% of the women. When couples were dissatisfied with mediation,
the reasons cited for dissatisfaction were that the sessions were
tension-filled and
unpleasant (46-57%), they stimulated feelings of anger and defensiveness (44-
47%), the process was confusing (20-30%), and the process was rushed and the
parents felt they were given assembly-line treatment (25-33%) (Pearson &
Thoennes, 1985b, 1988a, 1989). Thus the researchers concluded that obtaining an
agreement is not synonymous with resolving all the emotional or even legal
issues
involved in a divorce (Pearson & Thoennes, 1985b). Indeed, approximately
one-third of the parents who reached agreements in mediation still maintained
that
they made "little" or "no" progress in their case (Pearson & Thoennes, 1985b).
How comparable these findings are to dissatisfaction with litigation is not
clear. Some research has shown that those who litigate their divorces are not
necessarily dissatisfied with the entire court adjudication process, but are
thoroughly
dissatisfied with court hearings in particular (Dingwall & Eekelaar, 1988).
For example, Pearson and Thoennes (1988a, 1989) found in their studies, 70% of
the litigants were satisfied with their attorneys, but strongly disliked
exposing
private issues in a public forum, the impersonality of the court experience, its
negative (i.e., 'criminal') overtones, and the degree of control exercised by
legal
actors. Bautz (1988) also found indirect support for this in her study, which
found
that the litigation group's average response was "I have mixed reactions: I am
satisfied with some things and dissatisfied with others" (p. 57). Thus, as
Dingwall
and Eekelaar (1988) pointed out, it is not the entire adjudication experience
litigants find unsatisfactory, but mainly the court hearing which is strongly
aversive.
Assuming for the moment that there is a somewhat higher level of dissatisfaction
found in litigated cases, one possible explanation for this finding is that,
even in the best of circumstances, parents may expect more of the legal system
than it can deliver (Felstiner & Sarat, 1992). Studies find that 50-60% of those
with a dispute over custody or visitation are dissatisfied with the court
experience,
and 40-50% of those exposed to a custody evaluation are dissatisfied, while even
those who did not contest custody or visitation report 40% dissatisfaction
(Pearson
& Thoennes, 1985a). Parents come to their lawyer requesting several pieces
of information: the legal rules that will be applied, the probabilities of
achieving
various results, a definite estimate of the costs they will incur, the specific
time
line for different portions of the case, and the roles that different actors
will play
(Sarat & Felstiner, 1986). Unfortunately, there are no standard answers that
lawyers can provide to parents (Sarat & Felstiner, 1986). Lawyers and judges
have wider discretion in interpreting the legal possibilities in divorce law.
This
level of discretion is greater than than they have in areas of law where the
rules
DIVORCE MEDIATION 1033
significantly narrow the latitude in lawyer negotiations and judicial
decisionmaking
(e.g., criminal law) (Felstiner & Sarat, 1992).
vindication, the last dollar of support, meticulous estimates of property
value, a
neat and precise division of property, a visitation scheme that covers a very
wide
range of contingencies, and equitable arrangements that govern the future as
well
as the present may be theoretically possible, but even approximations require
extensive services that middle-class clients generally cannot afford.
(Felstiner &
Sarat, 1992, p. 1461)
Parents are brought face-to-face with the high cost of comprehensive legal
representation and the inability of the substantive law in this area to give
them
definite answers to many of their questions (Sarat & Felstiner, 1986). Thus, it
may
be that the litigants' expectations of mediation and litigation are different.
Litigants
may expect more certainty from the adversarial process than it can deliver.
In addition, as noted above, litigants particularly dislike the court hearings
(Dingwall & Eekelaar, 1988). It may be that this dislike of the public court
hearing overshadows feelings toward the adversarial process in general as
opposed
to litigants preferring the mediation process.
Forrest (Woody) Mosten
Collaborative Attorney
Certified Family Law Specialist
Board of Specialization, State Bar of California
9401 Wilshire Blvd, 9th Floor
Beverly Hills, California 90212
Office Phone 310-473-7611
Training Phone 310-441-1454
Cell Phone 310-721-4291
Fax 310-470-2625
Adjunct Professor of Law, UCLA School of Law
www.MostenMediation.com
www.CollaborativeDivorceHandbook.com
From: CollabLaw@xxxxxxxxxxxxxxx [mailto:CollabLaw@xxxxxxxxxxxxxxx] On Behalf Of ;
roymartin@xxxxxxxxxxxxxxxxxxx
Sent: Saturday, March 22, 2014 11:53 AM
To: CollabLaw@xxxxxxxxxxxxxxx
Subject: [CollabLaw] Re: Divorce satisfaction (or lack of) statistics
Thanks for posting this Forrest. Many of us who participate in both worlds
clearly have a strong anecdotal sense that our ADR clients emerge a lot more
satisfied than our litigation clients. It's good to know that this bears out
empirically.
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