New York University Review of Law & Social Change
Marital and family disputes have been an important focus for alternative dispute resolution. Perhaps because divorce and custody disputes reveal the personal, human, and emotional aspects of conflict more visibly than other types of legal proceedings, attempts to resolve such disputes through the traditional legal process have proved remarkably ineffective. Mediation of divorce and custody matters is a particularly promising method of achieving more expeditious, less hostile, and more enduring matrimonial and custodial arrangements.
The mediation process offers to divorcing couples a neutral third party who will help the parties resolve their disputes. The mediator's function is to develop a mutually agreeable settlement by helping the parties to isolate points of agreement and disagreement, explore alternative solutions, and consider compromises. Thus, mediation differs from negotiation where lawyers represent the parties and explore settlement possibilities while protecting the interests of their individual clients. It also differs from arbitration because, unlike an arbitrator, the mediator does not make decisions for the parties but instead attempts to facilitate the parties' decision making.
Linda Silberman and Andrew Schepard,
Court-Ordered Mediation in Family Disputes: The New York Proposal, 14 N.Y.U. Rev. L. & Soc. Change 741
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