North Dakota Law Review

Volume 79 Number 3 Article 1

2003

Controversies in Divorce Mediation

Dennis P. Saccuzzo

Follow this and additional works at: https://commons.und.edu/ndlr

Part of the Law Commons

Recommended Citation
Saccuzzo, Dennis P. (2003) "Controversies in Divorce Mediation," North Dakota Law Review: Vol. 79 : No. 3
, Article 1.
Available at: https://commons.und.edu/ndlr/vol79/iss3/1

This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has
been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For
more information, please contact und.commons@library.und.edu.
 CONTROVERSIES IN DIVORCE MEDIATION

DENNIS P. SACCUZZO*

I. INTRODUCTION

A. PROBLEM WITH TRADITIONAL APPROACHES TO DIVORCE

Divorce statistics are staggering. In 1867, the first year divorce sta-
tistics were collected, the total number of divorces in the United States was
just less than 10,000-about .03 divorces per 1,000 people.' By 1967, the
divorce rate had jumped 140 times to 4.2 divorces per 1,000 people, about
500,000.2 By 1981, the number of divorces had more than doubled to 1.21
million, about 5.3 divorces per 1,000 people. 3 Because modem public poli-
cy recognizes divorce as a socially acceptable means of recording family
relationships, 4 demographers estimate that approximately forty-five percent
5
of all current marriages will end in divorce.
The explosion in the numbers and prevalence rates of divorce has been
a primary factor in overburdening the judicial system in the United States,
with an attendant increase in public costs. 6 Indeed, matrimonial actions
7
comprise more than half of all cases filed in the courts.
Perhaps more serious than overcrowded courts are the numerous ad-
verse consequences of divorce actions. Adjudication of a modem divorce
extracts a heavy toll on the parties and their children. Financially, divorce
proceedings often consume a large percentage of the parties' wealth, which
causes both parties to suffer a reduced standard of living immediately after

* Dennis P. Saccuzzo is a Professor of Psychology at San Diego State University and an Ad-
junct Professor of Law at California Western School of Law in San Diego. He is a California
Attorney and a California Licensed Psychologist.
1. Kenneth J. Rigby, Symposium: Alternate Dispute Resolution, 44 LA. L. REV. 1725
(1984) (citing C. VETTER, CHILD CUSTODY: A NEW DIRECTION 9 (1982)).
2. Id.
3. Rudolph J. Gerber, Recommendation of Domestic Relations Reform, 32 ARIZ. L. REV. 9,
10 (1990) (citing BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT
OF THE U.S. 87 (1989)).
4. Id.
5. Id. (citing Samuel H. Preston, Estimating the Proportion of American Marriages That End
in Divorce, 3 SOC. METHODS & RES. 435 (1975)).
6. Rigby, supra note 1, at 1725.
7. Gerber, supra note 3, at 10.
 NORTH DAKOTA LAW REVIEW [VOL. 79:425

the divorce. 8 Where custody is an issue, litigation costs on average in

excess of $15,000.9
In addition to the financial cost is the emotional drain on the parties.
Acrimony between the parties is unfortunate because often they need to
maintain their relationship. As Rudolph J. Gerber has noted:
Unlike a settlement in a tort case, where the parties usually never
see each other again, parents in a divorce need to maintain a con-
tinuing relationship. The animosity of the adversarial process
impedes that possibility. Uninhibited warfare inflames the pas-
sions of the litigants and often undermines the cooperation and
communication needed for post-divorce parenting. O
Herein lies the problem with the adversarial model: it increases trauma
and escalates conflict."l Traditional judicial proceedings typically end with
bitterness and unresolved feelings.12 Children often suffer the most in the
"tug of war" between their parents.13 Other problems of the traditional ad-
versarial system include wasted energies, wasted expectations, and loss of
confidence in the system.' 4 It has been said that the traditional adversarial
model "worsens rather than resolves modem marital disputes."15

B. NEED FOR ALTERNATIVES

Because of the costs associated with the traditional adversarial model,

there has been a widespread call for alternatives.16 Among these alterna-
tives, perhaps none is more popular than mediation. 17 Indeed, courts in
more than half of the states are authorized by statute to provide some form
of mediation in divorce cases. 18

8. Id. at 11.
9. Id.
10. Id. at 11.
11. Id. (citing Margaret S. Herrman et al., Mediation and Arbitration Applied to Family
Conflict Resolution: The Divorce Settlement, 34 ARB. J. 17, 18 (1979)).
12. Id. at 12 (citing A. Milne, Custody of Children in a Divorce Process: A Family Self-
DeterminationModel, 16 CONCILIATION CTS. REV. 1, 2 (1978)).
13. Id.
14. Id. at 13.
15. Id. at 14.
16. Rita Henley Jensen, Divorce-MediationStyle, 83 A.B.A. J. 54 (1997).
17. Id. at 56 (citing U.S. COMMISSION ON CHILD AND FAMILY WELFARE, October (1996)).
18. Craig A. McEwen et al., Bring in the Lawyers: Challenging the Dominant Approaches
to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317, 1404-10 (1995).
2003] DIVORCE MEDIATION

1. Advantages of Divorce Mediation

There are numerous advantages of divorce mediation over the tradi-
tional adversarial model. When divorcing parents mediate rather than liti-
gate, they are less likely to bring postdivorce disputes back into the legal
system.19 The effectiveness of mediation in producing a final settlement is
perhaps due to its recognition of the psychological and emotional aspects of
divorce. 20 As Rudolph J. Gerber noted:
Mediation allows an airing of emotional feelings, even if they are
irrelevant. Thus, anger, humiliation, disappointment and betrayal
can be vented, recognized and managed so that these feelings are
safely released [and thus] do not later surface in the form of post-
21
divorce litigation.
Kenneth J. Rigby has identified over eighteen separate advantages to
divorce mediation. 22 These advantages include opening communication be-
tween the parties, allowing parties to settle their own agreements, taking the
divorce process out of the adversarial win or lose setting, reduced expense
and quicker court processing, and diminished emphasis on fault finding.23
In addition, mediation is conducted in private. 24 It also permits the airing of
all grievances, aids the parties in resuming a working relationship, and
reduces feelings of anger and injustice. 25 Mediation can also save money.
According to one estimate, if mediation was universally available it could
save taxpayers 9.6 million dollars per year in court costs and save litigants
26
88.6 million dollars per year in legal fees.

2. Overview of Controversies
Despite its many advantages, divorce mediation is not without contro-
versy. 27 Among the controversies is who should perform the mediation?
For example, should divorce mediation be restricted to lawyers or should it
be open to nonlawyers? A second major controversy concerns power im-

19. Jay Folberg, Mediation of Child Custody Disputes, 19 COLUM. J. L. & Soc. PROBS. 413,
425 (1985).
20. Gerber, supra note 3, at 16 (citing Florence W. Kaslow, The Psychological Dimension of
Divorce Mediation, in DIVORCE MEDIATION: THEORY AND PRACTICE 83 (Jay Folbert & Ann
Milne eds., 1988)).
21. Id.
22. Rigby, supra note 1, at 1744-45.
23. Id.
24. Id. at 1744.
25. Id. at 1744-45.
26. Id. (citing S. J. Bahr, An Evaluation of Court Mediation: A Comparison in Divorce Cases
With Children, 2 J. FAM. ISSUES 39, 52 (1981)).
27. Id. at 1745.
 NORTH DAKOTA LAW REVIEW [VOL. 79:425

balances. 28 It has been argued that divorce mediation may be dangerous, if

not inappropriate, for women due to power imbalances. These imbalances
are especially acute in the mediation of domestic violence. A third
controversy involves ethical and professional standards of practice-what
principles should guide the process of divorce mediation.
The purpose of this note is to survey these three major controversies in
divorce mediation: who should perform the mediation, power imbalances,
and ethical issues and standards. The discussion will begin with a brief
overview of the definition and scope of divorce mediation. Then follows a
brief discussion and analysis of each of these issues.

II. WHAT IS DIVORCE MEDIATION?

A. DEFINITIONAL APPROACHES
Mediation has been defined in the literature in various ways. Ac-
cording to Wendy Woods, mediation is "a voluntary process in which a
neutral third party, without authority to impose a solution, helps the partici-
pants reach an agreement." 29 Thomas A. Bishop offers a similar definition
of mediation: "Mediation is ... a consensual process through which divorc-
ing spouses negotiate the terms of their divorce with the help of a third
party." 30 Rudolph J. Gerber provides a third example of how mediation has
been defined:
Mediation is a process in which a third party, the mediator, en-
courages the disputants to find a mutually agreeable settlement by
helping them to identify issues, reduce misunderstandings, vent
emotions, clarify priorities, find points of agreement, and explore
areas of compromise. 31
In all definitions of mediation, the following consensus emerges. First,
the mediator's role is that of a neutral third party. Second, the mediator
facilitates communication and understanding while guiding the parties to an
agreement. Third, the parties, rather than an adjudicator as in a trial or arbi-
tration, make their own decisions. Finally, the goal is a solution that meets
the interests of all parties. 32

28. Id.
29. Wendy Woods, Model Rule 2.2 and Divorce Mediation: Ethical Guidelines or Ethics
Gap?, 65 WASH. U. L.Q. 223, 224 (1987).
30. Thomas A. Bishop, Outside the Adversary System: An ADR Overview, 14 SPG. FAM.
ADvoc. 16 (1992).
31. Gerber, supra note 3, at 14.
32. ROGER FISHER ET AL., GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING
IN 14 (1981).
2003] DIVORCE MEDIATION

B. THE SCOPE OF DIVORCE MEDIATION

Despite its long history as a method of dispute resolution, the use of
mediation as an alternative to traditional adversarial approaches is a rela-
tively recent phenomenon. 33 Nevertheless, mediation is in widespread use
following a "flurry" of state legislative activity. 34 Today, the use of media-
tion is "widespread and growing." 35 More than half the states have passed
36
legislation that provides for some form of mediation in divorce cases.
Individual state laws vary widely. In Alaska, state law gives the courts
broad discretion over mediation of divorce cases. 37 The Alaskan statute
permits the judge to appoint the mediator but allows a preemptory
39
challenge. 38 The parties may elect counsel.
The North Dakota statute, by contrast, gives courts the option of order-
ing mediation at the parties' expense.40 Courts then can appoint a mediator
from an approved list.41
California law provides for mandatory mediation when child custody is
contested in a divorce.4 2 Mediators are appointed by the court and may
include "professional staff of a family conciliation court, probation depart-
ment, or mental health services agency, or may be any other person or
agency designated by the court." 43 The California statute emphasizes the
role of the mediator in "[equalizing] power relationships between the
parties." 44 In addition, the mediator is to make "best efforts to effect a
settlement." 45 The mediator has the authority to exclude counsel from the
mediation process. 46
With its broad scope and widespread use, mediation is a target of com-
mentary, debate, and criticism. Given its potential advantages and the

33. Jana B. Singer, The Privatizationof Family Law, 1992 WIs. L. REv. 1443, 1497 (1992).
34. Id. at 1498.
35. Karla Fischer et al., The Culture of Battering and the Role of Mediation in Domestic
Violence Cases, 46 SMU L. REv. 2117, 2141-42 (1993).
36. See notes 16-18 and accompanying text. The states are Alaska, Arizona, California, Dela-
ware, Florida, Idaho, Illinois, Indiana, Iowa, Maryland, Michigan, Minnesota, Missouri, Montana,
Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, Texas, Washington, West Virginia, and Wisconsin. McEwen, supra note
18, at 1404-10.
37. ALASKA STAT. §§ 25.20.080, 25.24.060 (Michie 2002).
38. Id. § 25.24.060(b).
39. Id. § 25.24.060(c).
40. N.D. CENT. CODE § 14-09.1-02 (1997).
41. Id. § 14-09.1-03.
42. CAL. FAM. CODE § 3170 (West 1994).
43. Id. § 3164(a).
44. Id. § 3162(3).
45. Id. § 3180(b).
46. Id. § 3182(a).
 NORTH DAKOTA LAW REVIEW [VOL. 79:425

growing number of states making use of mediation, it would seem prudent

to examine these controversies.

III. CONTROVERSY #1: WHO SHOULD PERFORM THE

MEDIATION?
While most state laws call for qualified or approved mediators, only a
few state laws actually provide specific guidelines or minimum qualifica-
tions. A Kansas statute specifies factors that courts can consider in select-
ing a mediator. 47 In choosing a mediator, the courts are required to consider
whether there is an agreement for a specific mediator; the presence of
conflict or bias; the mediator's knowledge of the Kansas judicial system
and sources for referral; the mediator's knowledge of clinical issues, such as
the psychology of families and the effects of divorce on children; and the
mediator's training and experience.4 8 There is no apparent mention of a
particular type of training or provision for legal training.
Michigan statute requires mediators to be licensed to practice psy-
chology or to have a master's degree in counseling, social work, or
marriage and family counseling.4 9 To be considered qualified, a Michigan
mediator must have at least forty hours of classroom instruction and 250
hours of practical experience. 50
There is little doubt that state law does not require mediators to be
legally trained. Yet, the issue has been raised-should divorce mediation be
a practice of law? On the other hand, some have argued that lawyers
actually hurt the process and should be excluded.
Presently, both lawyers and nonlawyers serve as divorce mediators. 5'
A major advantage of restricting mediation to lawyers is that lawyers are
trained to specific standards, subject to supervision through the ABA and
legislation, and guided by a set of professional ethics. 52 Such supervision
and control affords some protection to the public. By contrast, there are
few clear standards and presently no state licensing requirements for
nonlawyer mediators. 53

47. KAN. STAT. ANN. §§ 23-601 to -606 (2002).

48. Id. § 23-602(b).
49. MICH. COMP. LAWS. § 552-513(4)(a)(i) (1988).
50. Id. § 552-513(4)(a)(iii).
51. Andrew S. Morrison, Is Divorce Mediation the Practice of Law? A Matter of
Perspective, 75 CAL. L. REV. 1093 (1987).
52. Id. at 1122-24.
53. See supra notes 33-47 and accompanying text.
2003] DIVORCE MEDIATION

According to Andrew Morrison, there are several reasons a consumer

might prefer a lawyer mediator. 54 For example, a consumer might believe
and expect that the mediator knows the law. 55 In addition, a consumer
might believe he or she is getting and paying for the services of a lawyer.
Another reason a consumer might prefer a lawyer is because he or she
knows the lawyer has been licensed by the local bar. 56 In addition, a con-
sumer might prefer a lawyer mediator because he or she expects that the
lawyer is engaged in the practice of law and is therefore held to a higher
standard. 57 Perhaps the most important reason for preferring a lawyer is
that resolving and settling divorce disputes often requires a knowledge of
the law.58
On the other hand, there are many arguments in favor of permitting
nonlawyer mediators. For example, because the mediation process is non-
adversarial, nonlawyers may actually be more qualified to serve in the
mediator role.59 Another argument in favor of nonlawyer mediation in-
volves access to services. Nonlawyer mediation fills a gap where lawyer
mediators are unavailable or where there is a lack of lawyers with sufficient
60
training, experience, and interest in providing divorce mediation.
There is a general consensus supporting the use of nonlawyer media-
tors. 61 Where a knowledge of the law is needed, a lawyer and another
professional, such as a licensed psychologist, could collaborate in the
mediation process. 62 However, according to Judy C. Cohn, when it comes
to child custody disputes, mediation should be restricted "only" to lawyer
mediators. 63 This is because a knowledge of the law is essential in such
disputes and "the lawyer-mediator knows the legal system and knows the
law."64

54. Morrison, supra note 51, at 1121-23.

55. Id. at 1121.
56. Id. at 1122.
57. Id. at 1123.
58. Marsha B. Freeman, Divorce Mediation: Sweeping Conflicts Under the Rug: Time to
Clean House, 78 U. DET. MERCY L. REV. 67, 73-74 (2000).
59. Morrison, supra note 51, at 1115.
60. Id. at 1115-16.
61. Bobby Marzine Harges, Mediator Qualifications: The Trend Towards Professionalism,
1997 BYU L. REV. 687, 693-94 (1997) (noting that qualifications vary amongst the states but
often include advanced degrees and specialized mediation training).
62. Id.
63. Judy C. Cohn, Custody Disputes: The Case for Independent Lawyer-Mediators, 10 GA.
ST. U. L. REV. 487, 502 (1994).
64. Id. at 502.
 NORTH DAKOTA LAW REVIEW [VOL. 79:425

Andrew Morrison has proposed, as a solution to the lawyer or non-

lawyer debate, a "bifurcated system." 65 A bifurcated system would allow
for both lawyer and nonlawyer mediators. 66 The bar would supervise
lawyer mediators while nonlawyers would be supervised by another
organization. 67 Such a system would protect the public while making clear
the distinction between the two types of mediators. 68 It would then be up to
each type of mediator to define when each might be preferable for any
given case. 69
A major problem with nonlawyer mediators is the lack of standard edu-
cational and licensing requirements. It is hard to imagine a single organiza-
tion that would supervise groups as diverse as licensed psychologists, social
workers, and marriage and family counselors. Each of these disciplines has
its own educational requirements and licensing standards. 70 For maximum
protection of the public, there should be uniform minimum requirements,
accreditation of programs, and state licensing for nonlawyer mediators.

IV. CONTROVERSY #2: POWER IMBALANCES

A. PROCESS DANGERS FOR WOMEN: CUSTODY DISPUTES

One of the most serious criticisms of divorce mediation is that it may,
in certain circumstances, disadvantage women. 71 According to Trina Gril-
lo, mediation, or at least mediation involving custody disputes for divorcing
women, provides no solution to the need for an alternative to the traditional
adversarial model:
[M]andatory mediation provides neither a more just nor a more
humane alternative to the adversarial system of adjudication of
custody, and, therefore, does not fill its promises.... [M]andatory
mediation can be destructive to many women and some men
because it requires them to speak in a setting that they have not
chosen and often imposes a rigid orthodoxy as to how they should
speak, make decisions, and be. 72

65. Morrison, supra note 51, at 1124-25.

66. Id.
67. Id. at 1124.
68. Id.
69. Id. at 1125.
70. Dennis P. Saccuzzo, Liability for Failure to Supervise Adequately Mental Health
Assistants, Unlicensed Practitioners,and Students, 34 CAL. W. L. REV. 115, 115-16 (1997).
71. Trina Grillo, The Mediation Alternative: Process Dangersfor Women, 100 YALE L.J.
1545, 1549 (1991).
72. Id. at 1549-50.
2003] DIVORCE MEDIATION

According to Grillo, a woman in mediation is under the handicap of

strong social pressure and stereotypes. 73 If she is not cooperative, she is
seen as vengeful and bitter.74 If she does not put her own feelings aside, she
is seen as greedy and ready to sacrifice her children as a tool against her
husband. 75 If she does not compromise, she is seen as irrational. 76 One
way to deal with issues such as these is to have a mediator who is aware of
the issues and is able to empower the woman. 77 However, Grillo believes
the potential pitfalls for women are great and require extremely careful
handling if women are to avoid being taken advantage of in custody
disputes. 78
According to Margaret Brinig, divorce mediation can disadvantage
women in custody disputes unless the mediator remains vigilant to certain
critical issues.79 Brinig argues that the divorce mediator must be conscious
of power imbalances "brought about by the difference in men's and
women's earning power and by physical abuse if present in the relation-
ship."80 Brinig contends, however, that given this awareness, mediation
"remains a fair, as well as an inexpensive and time-saving, process for
marriage dissolution." 81 Commentators such as Grillo and Brinig represent
the view that power imbalances can be overcome with awareness. 82 An-
other view holds, however, that no amount of awareness can overcome the
issue of power imbalances where domestic violence is involved.

B. CAN DOMESTIC VIOLENCE BE MEDIATED?

Of all the critics of divorce mediation, perhaps none are more vocal
and adamant than opponents of mediation in domestic violence cases. 83
The potential risks of such mediation are recognized in state statutes such as
that of Illinois. 84 By contrast, some states, most notably California, provide

73. Id. at 1555.

74. Id.
75. Id.
76. Id.
77. Fischer et al., supra note 35, at 2168-69.
78. Grillo, supra note 71, at 1550.
79. Margaret F. Brinig, Does Mediation Systematically Disadvantage Women?, 2 WM &
MARY J. WOMEN & L. 1, 6 (1995).
80. Id. at 6.
81. Id.
82. See supra notes 71, 79.
83. Fischer et al., supra note 35, at 2165-66.
84. See generally ILL. COMP. STAT. ANN. 5/607.1(c)(4) (West 1992).
 NORTH DAKOTA LAW REVIEW [VOL. 79:425

for mandatory mediation in custody disputes but have no provision for

85
exclusion where domestic violence is present.
Proponents of mediation in domestic violence cases argue that such
mediation is not only faster and cheaper, but that it actually empowers
parties because it involves them both in the resolution process. 86 Pro-
ponents also argue that mediation of domestic violence is less remote and
impersonal than the court system, which has traditionally been unrespon-
sive to battered women. 87 According to Kathleen Corcoran and James C.
Melamed, mediation offers the following: the prospect of empowerment to
the victim, rehabilitation of the batterer, and, as a model of constructive
88
conflict resolution, an opportunity to end the cycle of violence.
According to Corcoran and Melamed, four safeguards can neutralize
the potential dangers of mediation of domestic violence. First, the victim's
attorney or advocate must be present during the process to balance negoti-
ating power.8 9 Second, private caucuses can be used to encourage disclo-
sures about intimidation or abuse and monitor the victim's safety. 90 Third,
as a prerequisite to mediation, both the victim and abuser should be in
counseling. 9' Finally, the mediator should take affirmative steps such as
screening out unsuitable cases through the use of questionnaires and careful
interviewing. 92
Critics, by contrast, argue that victims of domestic violence should not
have to negotiate for their physical safety. 93 Moreover, forcing victims to
negotiate with their abusers communicates the message that domestic vio-
lence is not a crime. 94 Perhaps the most serious criticism of mediation of
domestic violence comes from empirical studies that have revealed that
battered women are even more likely to be abused after separation if they
went through mediation rather than the traditional adversarial process. 95

85. CAL. FAM. CODE § 3170 (West 1994).

86. Charles A. Bethel & Linda R. Singer, Mediation: A New Remedy for Cases of Domestic
Violence, 7 VT. L. REV. 15, 32 (1982).
87. Kathleen 0. Corcoran & James C. Melamed, From Coercion to Empowerment: Spousal
Abuse and Mediation, 7 MEDIATION Q. 303, 311-12 (1990).
88. Id. at 311.
89. Id. at 312.
90. Id.
91. Id.
92. Id. at 313
93. Barbara Hart, Gentle Jeopardy: The Further Endangerment to Battered Women and
Children in Custody Mediation, 7 MEDIATION Q. 317, 326-27 (1990).
94. Anne E. Menard & Anthony J. Salius, Judicial Response to Family Violence: The
Importance of Message, 7 MEDIATION Q. 293, 298 (1990).
95. Desmond Ellis, Post-SeparationWoman Abuse: The Contribution of Lawyers as "Bar-
racudas," "Advocates," and "Counselors," 10 INT'L J.L. & PSYCHIATRY 403, 408-10 (1987).
2003] DIVORCE MEDIATION

Karla Fisher and colleagues have severely criticized mediation of

domestic violence cases on the grounds of an incompatibility between
mediation ideology and practice for domestic violence cases. 96 According
to these authors, there is a basic incompatibility between the practice of
mediation and the culture of battering. 97 For example, these authors argue
that while mediation is freely chosen, the culture of battering involves coer-
cion for battered women, no technique can compensate for the impact of the
battering experience, and most of the currently used screening protocols fail
to adequately assess abuse or other elements of the battering culture. 98
In general, the arguments against divorce mediation in the context of
domestic violence are powerful. Can a mediator really protect a woman
when she must return home with the abuser? What safeguards are there
against coercion by the batterer throughout the process? While a caucus
may provide limited protection, the mediator would be in a bind when a
victim disclosed abuse during a caucus. Those who attempt to mediate such
disputes should do so with a strong awareness of the pitfalls and empirical
data. Moreover, states like California, which requires mandatory mediation
of custody disputes without exclusions for domestic violence, should
carefully rethink these policies.

V. CONTROVERSY #3: ETHICAL ISSUES AND STANDARDS

The potential conflicts and pitfalls of mediating domestic violence dis-
putes raise the broader issue of mediator ethics. Unfortunately, there
presently exists no universally accepted code of ethics or professional stan-
dards for mediators. Two obstacles to the development of such ethics and
standards are that mediation has not been formally established as a
profession and there are no definitive standards of competency. 99
Commentators in the late 1980s noted that for lawyers, Rule 2.2 of the
Model Rules of Professional Conduct is especially relevant. 00 Model Rule
2.2 specifies the conditions under which a lawyer may act as an inter-
mediary between clients.10' However, people who attempted to apply

96. Fischer et al., supra note 35, at 2142.

97. Id.
98. Id. at 2170-71.
99. KIMBERLEE K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICE 272 (2d ed. 1994).
100. Woods, supra note 29.
101. MODEL RULES OF PROF'L CONDUCT R. 2.2 (1983) (hereinafter MODEL RULES). These
conditions are (a) where the lawyer "consults with each client concerning the implication of the
common representation," (b) "the lawyer ... believes . . . that there is little risk of material preju-
dice to the interests of any of the clients," and (c) "[t]he lawyer reasonably believes that the
common representation can be undertaken impartially." Id.
 NORTH DAKOTA LAW REVIEW [VOL. 79:425

Model Rule 2.2 to the mediation process found the rule to be inadequate.102
As Wendy Woods noted, "[T]he rule creates an 'ethics gap' . . . because it
fails to recognize the alternative of non-representational divorce media-
tion." 103 Thus, in conducting divorce mediation, the attorney represents
neither party. In fact, the parties are free to obtain their own counsel.
Woods notes that the absence of ethical standards is a problem, "With-
out a discernible ethical standard to guide their conduct, lawyers will be
reluctant to undertake divorce mediation for fear of malpractice liability and
disciplinary action." 104 Moreover, the absence of a universally accepted
code of ethics and professional standards leaves nonlawyer mediators
without guidance. Ultimately at risk is the public.
The absence of a code of ethics is a legitimate criticism of mediation in
general and divorce mediation in particular. Consequently, efforts to
develop such a code are welcome and badly needed.
Kimberlee K. Kovach has identified five major areas of ethical concern
in mediation: conflicts of interest, impartiality, the role of the mediator
versus self-determination, providing professional advice, advertising, and
fees. 105 These areas are encompassed by a joint code drafted by the Society
of Professionals in Dispute Resolution (SPIDR), the American Arbitration
Association (AAA), and the American Bar Association (ABA).106
The present draft of the Joint Code contains nine major principles, each
of which is followed by comments.107 The standards themselves are in-
tended to perform three major functions: to serve as a guide for the conduct
of mediators, to inform the mediating parties, and to promote public con-
fidence in mediation as a process for resolving disputes.108 The nine basic
principles cover self-determination, impartiality, and avoidance of conflicts
of interest. 109 Also covered are standards of competence, confidentiality,
and quality of process.1 10 Finally, the Joint Code presents principles related
to truth in advertising, disclosure of fees, and the obligation of mediators to
improve the practice of mediation."'

102. Woods, supra note 29, at 230.

103. Id. at 231.
104. Id.
105. KOVACH, supra note 99, at 277.
106. Id. at 279.
107. JOHN D. FEERICK ET AL., JOINT CODE (1994) in KOVACH, supra note 99, at 375-81
(hereinafter JOINT CODE).
108. Id. at 375.
109. Id. at 376-77.
110. Id. at 377-79.
111. Id.at 379-81.
2003] DIVORCE MEDIATION

With varying state laws, there is an urgent need for a comprehensive

code of ethics for mediators that would produce uniformity and to serve as a
basis of sound professional practice. The need for standard ethics and
professional standards is especially compelling given the diversity of
professionals involved in the mediation process.
In the area of divorce mediation, professional ethics and standards can
help protect the public. As previously indicated, members of the public are
often unclear about the professional backgrounds of mediators. 1 2 To the
extent that the public is misled or injured due to the lack of uniform stan-
dards, the entire process remains in some jeopardy. Given the potential
promise of divorce mediation as one solution to the problems with the
traditional adversarial model and the need for alternatives, it behooves all of
those involved with the process to work toward the developme it of compre-
hensive ethics and professional standards, as well as specialization within
disciplines and state licensing standards. With this change, divorce
mediation can remain strong and vibrant in the twenty-first century.

112. See supra notes 48-61 and accompanying text.