Family mediation is here to stay as a viable alternative to dispute resolution.
Be it court-connected or private mediation, the process is successful for so many reasons, including timely resolution and interest-based settlements.
Although mediation is not mandatory, recent Divorce Act changes require that clients be encouraged to explore resolutions through a family dispute resolution process, unless it is not appropriate for parties to engage that process.
As a court-connected mediator in particular, I find it encouraging to see the support demonstrated by judges who continue to refer parties to mediation. There seems to be a wave of strong encouragement by some judges for litigants to at least attend a mediation intake. That encouragement gets so many clients through the mediation door and ultimately out of the court process.
Is mediation working for parties? Absolutely! We now have empirical data confirming that fact.
Professor Rachel Birnbaum’s November 30, 2022 article in The Lawyer’s Daily entitled: “Private-based mediation in family disputes: Mediator and client experiences”, summarizes the results of her recent empirical study of private mediation. It certainly confirms, in my opinion, that mediation is fast becoming the preferred process being explored by parties wanting a time and cost-efficient way to resolve issues so that their families can transition to adjusting to their post-separation lives.
Whether the settlements coming out of mediation are sustainable seems to be a subject worth investigating as noted by Professor Birnbaum when she states: “Equally important is a focus on longitudinal research to address durability of settlements and the experiences of children involved in the mediation process”.
I am eager to read what I hope is a Part 2 to Professor Birnbaum’s research. If that study bears positive fruit, then what other data would we need to support mandatory referral to mediation intake? Perhaps that data is not even needed, since, according to the client interview findings as reported by Professor Birnbaum, most of the mediation clients interviewed who proceeded from their intake meetings to voluntary mediation felt that the “agreement was fair to them and their partner”.
I must say that the report on the lack of equity, diversity and inclusiveness in the “roster” of private mediators is troubling. As many mediators know, building trust within the first few minutes of an intake is a skill worth honing; However, there is a part of that rapport and trust building that is not skill-based, but is what I term connection-based. What is connection? Diversity offers connection.
This study sheds light on what is working well and where more work is needed. Thank you Professor Birnbaum for your work.
