PrepTest 47, Section 4, Question 16

Individual family members have been assisted in resolving disputes arising from divorce or separation, property division, or financial arrangements, through court-connected family mediation programs, which differ significantly from court adjudication. When courts use their authority to resolve disputes by adjudicating matters in litigation, judges' decisions are binding, subject only to appeal. Formal rules govern the procedure followed, and the hearings are generally open to the public. In contrast, family mediation is usually conducted in private, the process is less formal, and mediators do not make binding decisions. Mediators help disputing parties arrive at a solution themselves through communication and cooperation by facilitating the process of negotiation that leads to agreement by the parties.

Supporters of court adjudication in resolving family disputes claim that it has numerous advantages over family mediation, and there is some validity to this claim. Judges' decisions, they argue, explicate and interpret the broader social values involved in family disputes, and family mediation can neglect those values. Advocates of court adjudication also argue that since the dynamics of power in disputes are not always well understood, mediation, which is based on the notion of relatively equal parties, would be inappropriate in many situations. The court system, on the other hand, attempts to protect those at a disadvantage because of imbalances in bargaining power. Family mediation does not guarantee the full protection of an individual's rights, whereas a goal of the court system is to ensure that lawyers can secure all that the law promises to their clients. Family mediation also does not provide a formal record of the facts and principles that influence the settlement of a dispute, so if a party to a mediated agreement subsequently seeks modification of the judgment, the task of reconstructing the mediation process is especially difficult. Finally, mediated settlements divert cases from judicial consideration, thus eliminating the opportunity for such cases to refine the law through the ongoing development of legal precedent.

But in the final analysis, family mediation is better suited to the unique needs of family law than is the traditional court system. Proponents of family mediation point out that it constitutes a more efficient and less damaging process than litigation. By working together in the mediation process, family members can enhance their personal autonomy and reduce government intervention, develop skills to resolve future disputes, and create a spirit of cooperation that can lead to greater compliance with their agreement. The family mediation process can assist in resolving emotional as well as legal issues and thus may reduce stress in the long term. Studies of family mediation programs in several countries report that the majority of participants reach a full or partial agreement and express positive feelings about the process, perceiving it to be more rational and humane than the court system.

Individual family members have been assisted in resolving disputes arising from divorce or separation, property division, or financial arrangements, through court-connected family mediation programs, which differ significantly from court adjudication. When courts use their authority to resolve disputes by adjudicating matters in litigation, judges' decisions are binding, subject only to appeal. Formal rules govern the procedure followed, and the hearings are generally open to the public. In contrast, family mediation is usually conducted in private, the process is less formal, and mediators do not make binding decisions. Mediators help disputing parties arrive at a solution themselves through communication and cooperation by facilitating the process of negotiation that leads to agreement by the parties.

Supporters of court adjudication in resolving family disputes claim that it has numerous advantages over family mediation, and there is some validity to this claim. Judges' decisions, they argue, explicate and interpret the broader social values involved in family disputes, and family mediation can neglect those values. Advocates of court adjudication also argue that since the dynamics of power in disputes are not always well understood, mediation, which is based on the notion of relatively equal parties, would be inappropriate in many situations. The court system, on the other hand, attempts to protect those at a disadvantage because of imbalances in bargaining power. Family mediation does not guarantee the full protection of an individual's rights, whereas a goal of the court system is to ensure that lawyers can secure all that the law promises to their clients. Family mediation also does not provide a formal record of the facts and principles that influence the settlement of a dispute, so if a party to a mediated agreement subsequently seeks modification of the judgment, the task of reconstructing the mediation process is especially difficult. Finally, mediated settlements divert cases from judicial consideration, thus eliminating the opportunity for such cases to refine the law through the ongoing development of legal precedent.

But in the final analysis, family mediation is better suited to the unique needs of family law than is the traditional court system. Proponents of family mediation point out that it constitutes a more efficient and less damaging process than litigation. By working together in the mediation process, family members can enhance their personal autonomy and reduce government intervention, develop skills to resolve future disputes, and create a spirit of cooperation that can lead to greater compliance with their agreement. The family mediation process can assist in resolving emotional as well as legal issues and thus may reduce stress in the long term. Studies of family mediation programs in several countries report that the majority of participants reach a full or partial agreement and express positive feelings about the process, perceiving it to be more rational and humane than the court system.