In Defense of Mediation

Abstract

In response to Trina Grillo's article, The Mediation Alternative: Process Dangers for Women, this article evaluates the assertions made by Professor Grillo concerning mandatory mediation. While respectfully noting Professor Grillo's contributions to the field of alternate dispute resolution, this article outlines three serious concerns with Professor Grillo's arguments: (1) nany of Professor Grillo's statements and stories do not represent what actually happens at a typical mediation session, instead magnifying the worst possible abuses of the process; (2) to the extent that mandatory mediation presents some real problems, society may be better served by attempting to correct those problems than by abandoning mandatory mediation in areas where it has proved to be helpful; and (3) Professor Grillo's article suggests that mediation may be dangerous for women, and this article posits that mandatory mediation is generally helpful to both women and men. Professor Grillo suggests that mandatory mediation of child custody disputes is inappropriate both as a process and because of the substantive results it might produce. Her position is that mediation can lead to bad results for women, and that even being in mediation can be emotionally dangerous for women. This article argues, however, that mediation is generally helpful, and that mediation usually results in better outcomes and less emotional harm to the participants than does litigation. This article presents a brief description of mediation and mandatory mediation, as generally practiced. It summarizes what some scientifically conducted studies of mandatory mediation reveal about the process and the participants' reactions. Finally, it analyzes Professor Grillo's criticisms as applied to this process.