Faculty Scholarship

Document Type

Article

Publication Date

Winter 2011

Abstract

As a result of perceived inadequacies of the court system in dealing with marital disputes, it is not surprising that practitioners and litigants often turn to extra-judicial methods of resolving divorce cases. Two forms of ADR [alternative dispute resolution] that have been favored in dissolution of marriage actions are mediation, first introduced as an ADR method in the 1970s, and collaborative law, the veritable new kid on the block, developed within the past twenty years. Today, proponents of each ADR method vocally extol the perceived benefits. Detractors are equally strident in highlighting shortcomings.

Although the practice of each method has beneficial aspects aimed at reducing the trauma associated with divorce litigation, neither adequately fulfills the needs of litigants and lawyers practicing in the area. Rather than eschewing one method in favor of the other, there is a middle ground that combines favorable features of each ADR paradigm to create a hybrid form of 'cooperative mediation' ...

Before examining the benefits and shortcomings of mediation and collaborative law and detailing practice parameters for cooperative mediation, Part II of this paper will discuss the adversarial nature of divorce and its historical underpinnings impacting the effectiveness of ADR methods. Part III identifies, critiques, and compares key process features of mediation and collaborative law. Finally, Part IV will explain the proposed paradigm for cooperative mediation and justification for inclusion of certain process features. [excerpt]

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