Originally from Dispute Resolution Journal

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I.    INTRODUCTION

In 1969, state legislatures began allowing divorces without either party being required to prove fault.  The more relaxed requirements for divorce enabled couples to decrease transaction costs, including paying lawyers’ fees previously needed to satisfy the proof requirement. No-fault divorce also led to more use of divorce and family mediation as an alternative form to attorney and court involvement.  Mediators praise non-lawyer divorce mediation as being more expeditious, less expensive, very procedurally reasonable, and more amenable to truth finding than traditional divorce proceedings.  

Feminists initially praised this form of divorce resolution. In the 1990s however, many feminists began attacking divorce mediation in lieu of the adversarial process.  Their main argument is the following: that women fare worse than men in divorce mediation because of differences in male and female nature and socialization.  Feminists also claim that the typical marriage structure embodies a general power imbalance between the wife and husband, and that this consequently manifests itself in divorce mediation.  Due to these conjectures, feminist critics of divorce mediation argue that mediation is only effective when both spouses are equal in their bargaining power, and when severe power imbalances do not exist.  Although some feminists are staunchly against any type of divorce mediation for the reasons stated above, some feminists suggest that divorce mediation can be successful if the mediators are well-trained in divorce-mediation in order to be able to recognize power imbalances, and in this way, be able to ensure that women’s voices are truly heard.