Debra Berman and James Alfini have published Lawyer Colonization of Family Mediation: Consequences and Implications in the Marquette Law Review. From the introduction:
The relationships among divorcing spouses, lawyers, and the courts
have undergone significant changes over the past fifty years. The advent
of no-fault divorce promoted experimentation with mechanisms that
enhanced “private ordering” encouraged by the legal system in divorce
cases. In particular, court-sponsored family mediation programs
became fairly common across the United States. The mediators who
served in these programs came from a number of disciplines,
particularly the mental health professions and law. Parties have also
turned, and cases have also been referred,with increasing frequency to
family mediators in the private sector.
This Article discusses and analyzes trends in family mediation over
the past three decades, with a particular focus on the interdisciplinary
character of the family mediation field. Part II of this Article traces the
history of family mediation. Part III explores current trends and looks
at experiences with this dispute resolution alternative in three states
(Texas, Florida, and Illinois). Finally, Part IV discusses some of the
more salient themes that emerged from our research and concludes that
the growth of family mediation, and particularly its interdisciplinary
character, has been influenced by numerous factors. Most prominent
among these influences have been fiscal constraints, judicial preferences,
and lawyer colonization.
This article is very interesting because it explains the roots of mediation and how it spread throughout the U.S. legal system. The movement from primarily non-lawyer mediators to mediators being primarily lawyers was very slow. Attorneys seemed, as the article points out, the ones that resisted the mediation process the most, and now they embrace it. This is most likely due to the need to “control” mediation to preserve their own job economy. Mediation was feared by attorneys to replace their work and therefore they have taken the field over to ensure their own livelihood. I find this historical perspective on mediation very interesting. Whether this has a positive or negative effect on mediation and its own effectiveness time will tell.
The fiscal consequences of divorce have historically been far reaching. Families can be devastated by the separation and further crippled by the financial cost of getting divorced. Family mediation to reduce this devastating side affect of divorce can only help families move on to new beginnings in the best position possible.