Alternative Dispute Resolutions Essay Research Paper

Alternative Dispute Resolutions Essay, Research Paper

“The family has traditionally been viewed as the most important institution in America, but statistics show that approximately 50% of all marriages now end in divorce.” Unfortunately divorce has become a common occurrence in life today. Divorce litigation has soured over the years and continues to clog court dockets throughout the country. Given the tremendous demand for divorce settlements a need for alternative actions besides litigation is necessary not only for the couple’s but for the court system as well. Alternative Dispute Resolution is an area that has and can continue to help conquer this out of control court congestion in the instances of divorce. There are various forms of Dispute Resolution such as mediation, arbitration, and negotiation that are available for divorce settlements. However, this paper will be devoted to the most commonly used Alternative Dispute Resolution technique, mediation in the area of divorce. “Generally mediation is defined as an intervention in dispute negotiation by a trained, neutral third party with the purpose of assisting the parties to reach their own solutions.” Divorce mediation is only slightly different in that divorce mediation is: ” an attempt at mutual problem solving in which couples try to reach agreement on all of the issues in the primary areas of dispute in a divorce: property settlement, child custody and support, and spousal maintenance.” Divorce mediation is a technique that should be encouraged if not mandated by the judicial system. The advantages of divorce mediation clearly outweighs its problems as will be seen later in this paper. “Furthermore, given the enormous backlog of cases, adjudicated divorce is simply not practical. So long as the incidence of divorce, together with other litigation, continues to exceed the capacity of our court system, the legal profession should be motivated to continue its efforts to fashion a cure.” Mediation has not been readily used in the past, however, it is gaining momentum and availability throughout the country. This is clearly evident in the area of divorce mediation. Divorce mediation is undoubtedly one of the fastest growing areas of Alternative Dispute Resolution. However, many consider divorce mediation the least understood technique of A.D.R. This may be because people do not understand what mediation is and how beneficial it can be to both sides of a conflict. “Fifteen years ago, mediation practitioners spent more time trying to explain what mediation was than actually mediating.” Hopefully this has changed over the years as people begin to keep an open mind to new alternatives rather than litigation. Divorce mediation has many advantages not only to the parties but to the public and its court system as well. Divorce mediation is efficient, cost effective, convenient, voluntary and confidential. In addition mediation in divorce has strong advantages for the parties children. Mediation can be a way of achieving a healthy amicable divorce due to the compromising settlement developed by the parties themselves. This A.D.R. technique reduces court congestion, reduces the expenses for both parties and enables them to minimize post dissolution conflict by allowing the individuals to decide the terms of their individual divorce. In addition divorce mediation can reduce the hostility between the parties which should reduce the chances of re-litigating issues at a later time. As this papers discusses these above advantages in more detail, it should become evident how important and useful divorce mediation is and how it should be implemented in most divorce procedures. “If divorce is the proper alternative for two individuals, they should be spared as much pain as possible.” The pain that can come with divorce may be avoided or lessened if divorce negotiation is involved. “By the 1980’s this country’s skyrocketing divorce rate has been identified as the greatest single source of the bulge in litigation filings. This drastic increase placed a tremendous burden on the court, in some urban areas creating delays of as much as three years in obtaining a divorce.” Normally, this lengthy drawn out procedure can leave both parties emotionally and financially devastated. If divorce mediation is implemented in divorce actions, couples could determine together what their needs are and hopefully they will be able to reach a settlement that is less painful to themselves. In addition to court congestion, divorce mediation has proven to be less harmful on the welfare and best interests of the children involved in the dispute. “There is a significant body of evidence to suggest that the more pro-rated the conflict in the judicial process, the greater harm to the children.” An ugly divorce situation in which the mother and father are at odds can leave the children left unsure and stuck in the middle of the controversy. The children may be forced to testify in court which could in turn have negative affects on the child and his or her relationship with his or her parents. If the parents follow the divorce mediation road, the process may be less traumatic on the child. “One of the arguments in favor of mediated divorce settlements is that the process reduces the traumatic effects of divorce especially for the children.” It has been shown that a child’s future relationship with each parent is better ensured, and his or her existing relationship less damag