Burdening access to justice: The cost of divorce mediation on the cheap

St. John's Law Review, Spring 1999 by King, Carol J

In recent years, our society has produced a "widening gap between the rich [and] the poor."32 The justice system should aspire to reduce, rather than exacerbate, the disparity between the ability of the rich and poor to access desirable dispute resolution services, whether the services consist of traditional adjudication or innovative alternatives.

This Article argues that, while expanded use of family mediation may advance goals of both the justice system and the disputants, requiring party-paid divorce mediation presents jurisprudential as well as policy problems concerning fair access to justice which outweigh the benefits. In order to achieve the goal of increased use of family mediation, programs should be structured in a manner that does not require parties to pay more than a nominal fee.

Part I of this Article explains why it is imperative to address the issue of whether parties should be required to attend and pay for mediation. Part II examines the history and current practices of divorce mediation. Part III details the legal and policy issues surrounding both mandatory and voluntary court-- referred mediation, weighing both the benefits and burdens of family mediation.

In Part IV, this Article presents the results of a new empirical research study of three Ohio court systems that use three different approaches to mediation. In one court system, court employees mediated custody disputes free of charge. In the second court, a court employee educated parties to custody cases about mediation and referred them to private providers. The third court took no official action to encourage parties to use mediation, relying only on voluntary use by the disputants. The study results show that the problems of equal access to mediation based on relative income cannot be lightly dismissed. In addition, the research indicates that economic status is not the only potential source of unwarranted exclusion from mediation. Many policy makers exclude cases of reported domestic violence from divorce mediation. The new research questions the need for these well-intended exemption provisions. The study also sheds light on the role of attorneys in fostering the use of mediation by divorcing couples. The study's results, comparing litigants' reports of process and outcome satisfaction with mediated and attorney-negotiated settlements, support expanded access to mediation. The findings also raise attorneys' professional responsibility concerns.

In Part V, this Article sets forth a policy discussion that suggests ways of attaining the benefits of divorce mediation without unduly burdening access, to either mediation, or more traditional avenues of justice. Ultimately, I conclude that, rather than choosing the easy option of forcing parties to attend and pay private mediators as a prerequisite to having their cases heard in court, the courts should seek funding for court-annexed programs. Courts should wait to introduce innovations until sufficient funds are available to provide easily affordable mediation services to all who want or are required to use them.