When I was in law school, I vowed to never, ever, work
in family law because I did not want to handle divorces.
When I worked in private practice, I handled exclusively
business cases and never expected to work with families. This perspective changed shortly after taking my
current position as an Assistant Professor at the University of Nebraska College of Law, working in the area
of my biggest passion – dispute resolution.
Through my work in the State of Nebraska, I realized
how important conflict resolution can be to families
in crisis. I also learned that “family mediation” can
be so much more than “divorce mediation.” Family
mediation can and should involve more situations than
divorce or even custody issues. In this essay, I would
like to first review why mediation is such a good choice
for families, and then discuss areas where mediation
could further benefit families.
WHY MEDIATION WORKS FOR FAMILIES
Mediating disputes in divorce and parenting cases is
certainly not new, and the virtues of mediation make
these cases prime candidates for mediation. Three
attributes of mediation are particularly well suited for
issues involving parenting time and divorce: 1) a focus
on communication, 2) the ability to repair relationships,
and 3) cost-savings.
I practice interest-based mediation, and I believe very
strongly in party autonomy. I’ve observed that finding the root of a problem opens up the possibility for
limitless options to satisfy unmet needs. The key to
determining those needs, however, lies in communication. Open lines of communication can reduce parental
conflict, and mediation can begin to repair broken communication or even create communication in the cases
where the mom and dad have little history together.
Mediation is an ideal time to discuss how the parents will communicate, including the logistics of the
communication — such as every Sunday at 9:00 p.m.
by telephone call — as well as the appropriate topics
for conversation — focusing on the children and not
their former relationships. Mediation is perhaps the
only avenue in the legal system to explore and work
on these essential communication issues. Developing
communication protocols (other than standard boilerplate) receives little attention in the legal system.
Neglecting this important issue potentially sets parents
up for failure.
As with communication, mediation is similarly suited
to help parents transition their relationships. For divorc-
ing couples, the bond between husband and wife will be
broken, and the parties will need to transition into their
roles only as mom and dad. Mediation gives the parties
the unique ability to work on relationship issues, such as
parenting from two homes; the rules for bedtimes, dis-
cipline, and curfews; and how and when to introduce the
children to new significant others in the parents’ lives.
Using mediation to discuss their relationship and how to
be parents is a valuable use of time. Parents who cannot
work together on these aspects are significantly more
likely to return to the court system time and time again.
Further, many people choose mediation for its cost
savings. Contested divorce proceedings are costly in
time, stress, and money. When moms and dads spend
considerable amounts of money on litigation, their
money is going to legal fees instead of their children.
These are just a few of the reasons why mediation works well for families who are in the middle of
a divorce, paternity case, or a modification of a previous parenting plan. This type of “family mediation”
appears to be well accepted across the country, albeit
with variations from state to state. Expanding “
family mediation” to include many other types of family
disputes will better serve other types of disputes that
also involve family members.
The future of “family mediation” involves expanding
mediation services to other types of disputes involving family members. The benefits of family mediation
readily to disputes involving different or larger groups of
The last few decades have seen considerable shifts in
views of what constitutes a “family.” The assertion of
grandparent rights is more prevalent than ever. These
rights may arise when a grandparent asks for, but is
denied, time to spend with the grandchildren. A common
example is when a mother refuses to allow the paternal
grandparents to spend time with the grandchildren when
the father is away due to imprisonment, military service,
or relocation. Although the issues are similar to traditional parenting time cases, the dynamic in these cases is
very different. The rights of grandparents remain unclear
in many jurisdictions, and questions remain regarding
whether grandparents are entitled to “their own” time
or simply a substitute for time already established for
the non-custodial parent. Despite these uncertainties,
using mediation affords the parties limitless creative
options, as well as flexibility that would never be available
in the legal system. These disputes usually arise out of
relationship and communication problems between the
custodial parent and the non-custodial grandparents, so
mediation is ideal for these cases.
About the Author
is an Assistant
the University of
Nebraska College of
Law. She teaches
and writes in the
areas of Alternative
and Ethics. She is
also a practicing