ABSTRACT

Country:
Canada

Language:
English

Is Mediation Dangerous to Women?
Gender Issues and Family Mediation in Canada

Women's advocates warning about the danger of mediation for women

First I would like to reflect on two pamphlets written with the purpose of informing abused women about family mediation The first publication entitled "Warning!! Mediation can be dangerous to your rights", was produced by the Mediation Monitoring Group (MMG) in 1995 with the financial assistance of the Ontario Women's Directorate. This publication abounds with unwarranted assumptions about family mediation. For example authors of this pamphlet suggest that mediators draft separation agreements without any involvement of lawyers and the family court.
In mediation, you and your ex-partner have a number of private meetings with a so-called neutral third person and usually sign an agreement without going to court. (MMG 1995;1)
This statement contradicts family mediation training materials as well as mediation information pamphlets published by the Department of Justice Canada (DJC), and Family Mediation Canada (FMC). The DJC pamphlet tells that
Mediation is not a way around the law or the legal system. It is one of the alternatives within the legal system for reaching a separation agreement… If you and your spouse have worked out an agreement -whether by yourselves, with a mediator, or through lawyers- the court must review your request for a divorce and your agreement before you can get a divorce…

The court must be sure that your agreement is consistent with the law and, if there are children, that it is in their best interests and contains reasonable arrangements to provide for them (DJC,1988; p.9).
Discussing the role of lawyers the DJC pamphlet says:
It is essential that you have your own lawyer during mediation. A lawyer can tell you about your rights and responsibilities under the law, can give you legal advice, and can look at your agreement before you sign it to make sure that it is legally sound and does what you want it to do. …
Even if your mediator is a lawyer, both you and your spouse still require your own lawyers.(DJC; 1988,p.12)

The "Consumers' Guide" distributed by Family Mediation Canada contains similar information about lawyers' involvement in mediation and it explains the difference between marriage counseling and mediation as well. Training materials also tell mediators to urge their clients to have independent legal advice. It is regular practice for mediators to tell their clients not to sign their separation agreements without consulting their lawyers.
I would call a mediator who practices in the manner described by the MMG pamphlet a bad or a poorly trained mediator. The authors, however, perceive this 'bad mediator' as a typical mediator and aim all their criticism against this distorted image of a mediator. Mediators according to this pamphlet do marriage counseling instead of mediation (MMG, 1995;p 17). This again contradicts the DJC and FMC mediation information booklets. In explaining the difference between marriage counseling and mediation both booklets specifically state that mediation is not marriage counseling.

According to MMG mediators make false promises, are ignorant of gender-discrimination, and in general know preciously little about the dynamics of relationships, marriages, and break-ups. The authors contrast this image of the bad mediator with an ideal type of a 'good lawyer'. This 'bad mediator' versus 'good lawyer' is an implied assumption of many arguments in the literature critical of family mediation.
Lawyers and the courts are seen as acting 'in the best interests of the child' (MMG p.25). Mediators, on the other hand "can suggest whatever arrangements they like based on whatever they think is important, not necessarily what is best for your children" (MMG p.26). Women are told they are "safer when represented by an advocate or a lawyer" (MMG p.19), but they are in danger if they choose mediation. The authors acknowledge that
It's true that there are bad lawyers, but there are some safeguards and some ways of holding them accountable. There is very little, if any, protection against a bad mediator (MMG p.23)
Unfortunately it is questionable whether there are more safeguards against bad lawyers than against bad mediators. Most people who are in the middle of a separation or divorce do not have the time and energy to explore any of the safeguards against bad professionals. Clients unhappy with their lawyer or their mediator usually simply go to another lawyer or mediator and hope for the best.
The MMG depicts the legal process as being in the public sphere. Lawyers are bound by rules and regulations, and being in the public eye means they are open to scrutiny. Mediators, on the other hand supposedly work in the shadowy private sphere without any guiding rules to obey.

Equating lawyers with the public and mediators with the private sphere is problematic not only because it portrays mediation as inherently biased against women. This dichotomy also suggests that the legal process is un-biased, and supportive of women. In comparing an ideal legal process to a less than ideal mediation process the information presented in MMG tempts women to place uncritical trust in the legal system. When clients are presented with this ideal image of a lawyer, they often develop unrealistic expectations of what their lawyers can do for them. Neither lawyers, nor mediators can be expected to come up with magical solutions and professionals in any field can make mistakes or give wrong advice. Therefore placing total trust in any professional can backfire on the client. Educating women about how to chose the services of any professional should focus on how to choose a professional who is good for them. The conclusion one can draw from the MMG pamphlet is that clients have to choose between mediation and the legal process. Authors critical of mediation ignore the fact that in most cases mediation is complementary to the legal process.

According to this pamphlet mediators are ignorant of most issues affecting women and children including the issue of family violence (MMG p.29). In the view of these authors mediation is potentially dangerous to all women, not only to abused women (MMG p.12). By implying that lawyers are aware of these issues and in contrast to mediation, the legal system can actually protect women and children, women are given a false sense of security. Unfortunately there have been too many women abused, or even killed by their ex-partner despite restraining orders, and too many abusers have walked out of courtrooms with no more than a slap on their wrists as a punishment.
The MMG pamphlet claims that the goal of mediation is to reach an agreement, not fairness. The assumption is that by choosing the legal system, clients will achieve justice, fairness, equal division of property and the best representation of their children's interests. These assumptions again present women with false hopes.

The second information pamphlet, METRAC's "Mediation; Facts and Issues", was published in 1999. Similarly to the MMG pamphlet, it is aimed primarily towards educating abused women about mediation. Nevertheless this publication also maintains that mediation may be harmful to all women even if they were not abused (METRAC, 1999; p.8). On the cover-page we see a woman's face with black tape over her mouth, suggesting that she has been silenced by mediation.

This booklet repeats many assumptions of the MMG publication and its arguments are also represented within the framework of 'bad mediator versus good lawyer'.
Similar in content to the MMG pamphlet, the METRAC publication also sees mediation functioning as marriage counseling (MMG p.19; METRAC p.9). The first thing, however, mediators tell their clients is that they do not act as marriage counselors or as lawyers. Occasionally mediators might act as counselors but the professional step to take, is to refer to a therapists any client who has trouble coping with the break-up.
Both pamphlets have a list of DOs and DON'Ts. Some of the advice found in these pamphlets, could be guidelines for hiring any professionals. Most of the advice in this section would fit perfectly in any mediation training manual, or could be part of any mediator's ground rules. For example both the DJC and the FMC booklets advise clients to educate themselves about mediation, tell them that they should hire a lawyer and have their lawyer review the mediated proposal before signing.

The booklets "Another Way; Mediation in Divorce and Separation", published by the Department of Justice Canada (DJC), or the "Family Mediation Consumer's Guide" published by Family Mediation Canada are available free of charge at the Family Courts. However, based on the above discussion it is probably safe to assume that the authors of the MMG and METRAC pamphlets did not consult any of these basic mediation information sources. The METRAC publication mentions three sources, one of which is the Mediation Monitoring Group publication itself. Since none of these pamphlets is an academic publication, they can be excused for not having a proper bibliography listing all their sources. However, they cannot be excused for distributing false information. While the legal system is evaluated on the basis of what legal professionals say or publish about it, mediation is judged on the basis of myths circulating about it.
In the next section I will turn to more scholarly publication criticizing family mediation from a feminist perspective.

Warning from feminist scholars

In 1998 with the financial help of the Status of Women in Canada a team of researchers published a policy research paper called "Family Mediation in Canada: Implications for Women's Equality" (Goundry, 1998). According to the executive summary "there are critical issues that need to be addressed in order to ensure that mediation does not replicate the inadequacies of the court-based justice system" (Goundry, 1998; p.1). Although the authors of this report are aware of the "inadequacies of the court based justice system" their discussion of family mediation is based on a comparison between an ideal legal system and a less than ideal mediation process, a stance familiar from the information pamphlets.

Similarly to the MMG and METRAC booklets this report accepts the definition of the legal process as described by the legal profession, but has its own definition of mediation. As previously mentioned the mediation pamphlets published by DJC and FMC emphasize the importance of independent legal advice for both parties to the negotiation. Mediation training manuals as well as other scholarly publications produced by the mediation community describe the role of lawyers and courts in conjunction with mediation (See for example Noble, 1999; Irving, 1987: Landau, 1999). All these scholarly and popular publications present mediation as complementary to the legal system. In Goundry's interpretation, however, mediation replaces the legal system altogether. Because of this interpretation she maintains that mediation results in the privatization of family law. She talks about "privately ordered agreements" that allow social inequities to be reproduced and "remain hidden from the public eye". Her arguments are based on the dichotomy of the legal process taking place in the public and mediation in the private sphere. According to Goundry "one of the effects of 'diverting' family law cases to mediation and other informal dispute resolution mechanisms is to remove family law disputes from the public realm" (Goundry; 1998:34).

I would argue that mediators do not remove family disputes from the public realm any more than lawyers do. In fact in mediation usually both parties are present when the draft agreement is negotiated. Then, if mediation proceeds according to FMC guidelines (and not according to the definitions given by MMG and METRAC), this agreement is signed only after both parties have obtained independent legal advice in order to protect their rights and entitlements. If lawyers negotiate an agreement on behalf of their clients, whatever is discussed between lawyers and their clients is privileged, private information. Only the final result of their discussion (usually an affidavit or a motion) is open to public scrutiny and to the scrutiny of the other spouse. Spouses often exploit the privacy of their discussions with their lawyers to find out how far they can 'stretch the truth' without overstepping their legal boundaries. If lawyers knowingly help their clients to "stretch the truth" it is considered an act against their code of ethics. Mediators also have their code of ethics, however, this is ignored by most critics of family mediation.
The point I make here is that if there is a willingness to use power games, or even stretching the truth, the legal system does not necessarily provide better protection to the weaker party.

In fact in certain cases the mediation process could provide more room for exposing false statements made during negotiations. For example within the legal system, it is possible for a waiter or a cabdriver to conceal the actual amount of their income in order to reduce support payments. It is a lengthy and difficult procedure for the other spouse to prove that the real income is higher.
In mediation it is sometimes easier to confront the spouse who tries to bend the truth. Spouses have a pretty good idea of how much the other party earns and the mediator aware of both spouses' positions, may remind the negotiating parties of the ground rules of mediation, which include the rule of full disclosure.

Goundry talks about "the inability of informal justice systems to protect individual rights and entitlements" (Goundry, 1998:33-35). Labeling mediation as an "informal justice system" in this context suggests again that mediation is assumed to be something which replaces the formal justice system with an informal one. Here the mediation process is seen as an alternative and separate process rather than an alternative and complementary process to the legal system. Research done on the financial outcomes of mediated versus adversarial divorces actually contradicts Goundry's suggestion that the legal system does a better job in protecting women's entitlements (Marcus et al. 1999).
Goundry's claim that mediation fails to protect women's rights and entitlements brings us to another mistake often made by critics of family mediation, namely to blame mediation for the general ills of society. Gender discrimination is pervasive in North America despite the achievements made by the women's movement. Indeed there have been some positive developments for women in the legal system. However, women more often than men are under financial constraints and may find it difficult to hire a good lawyer. A good lawyer in this case should not only be someone with connections to the local legal scene, but also informed about gender issues in the legal process. Critics of mediation make the dubious assumption that the feminist movement has transformed lawyers. Since most lawyers work from the position of professional dominance, women as clients usually become dependent on their lawyers and have limited involvement with their own cases (Sarat, 1995; Edwards: 1997). Some authors even draw parallels between women's experiences with their lawyers and their experiences with abusive husbands (Edwards, 1997).

These pamphlets make us believe that mediators must have spent the last several decades in the privacy of their offices and are therefore ignorant of gender issues. This view of mediators survives despite discussions on feminist informed model of family mediation by mediation trainers (Irving & Benjamin, 1995; Edwards,1997).
I would like to address briefly the so-called mediation bias toward shared parenting or joint custody. The idea behind shared parenting, or joint custody is that both parents are responsible for raising their children. Advising women against joint custody in favor of sole custody for the mother can bring us back to pre-feminist definitions of parenthood; when women were seen as solely responsible for child-rearing. Shared parenting doesn't only work for fathers. It also allows women to occasionally be relieved of their parenting duties. When fathers take responsibility for raising their children in a post-separation family, mothers can take evening classes, go out with their friends, or just do something on their own. Even the most devoted parents need some time off.

This is not to say that shared parenting is the preferred option for every mediated agreement. As I already mentioned above, parents do not necessarily fight for custody with the best interests of their children in mind. Often children are neglected, abused, or used as bargaining chips by their parents. Some people simply lack basic parenting skills. Shared parenting is not a good idea when one of the parties to the agreement is an unfit parent. We should, however, not jump to the conclusion that all divorcing fathers are unfit parents, and their only reason for fighting for joint custody is to pay less child support.
It should also be noted here that mediators did not invent the idea of shared parenting. For example a study of divorce lawyers and their clients discusses the shift from a primary, if not exclusive role in parenting to a continuing involvement of both parents in the post-divorce lives of the children (Sarat, 1995:27). The establishment of family mediation as a profession coincides with societal changes such as women's increased labor force participation, increased divorce rates etc. These societal changes necessitated new definitions of family and parental responsibilities. As a result fathers are expected to take a bigger share in parenting than they traditionally did, in intact families as well as in post-separation families. This in turn is reflected in an increase in joint custody decisions.
Couples who are ready to settle their dispute in mediation are more likely to accept joint custody than the general population of separating couples Simply because joint custody is favored by fathers' rights groups, it does not necessarily mean that it is an arrangement disadvantaging women. Indeed fathers often fight for joint custody in order to reduce their child support payments. One of the skills a good mediator should have is to be able to determine whether a father wants to spend more time with his children, or simply wants to pay less support. There is little room for inquiring about a father's real motivations in the courts.

Conclusion

In this paper I have looked at critical comments on family mediation by the feminist community in Canada. The hostility/antagonism towards family mediation among women's advocates and feminist scholars is mostly based on a distorted picture of family mediation. The MMG and METRAC information pamphlets as well as the policy research paper discussed above, have all made major contributions to this distorted picture.
The images and definitions presented in these critical publications contradict the self-definition of family mediators. One of the disturbing findings of this paper is that information coming from the mediation community was ignored by the MMG and METRAC publications, and was dismissed as rhetoric by the policy research paper.
Despite efforts to develop a feminist informed model of mediation (Irving and Benjamin) feminists outside of the mediation community remain hostile towards family mediation (Edwards, 1997). I would argue that this hostility has the unintended consequence of harming the very group of women which the feminist community tries to protect from 'the dangers' of family mediation. Most arguments compare mediation to the legal profession, whereby women are presented with the choice between a perfect lawyer and a less than ideal mediator. When women's activists advise women to rely on and trust the legal system, they accept the liberal view that the law mirrors a social consensus. They suggest that the legal system is capable of protecting women and properly representing their interests. Clients choosing lawyers based on this idealized image often have unrealistic expectations in terms of what the legal system can do for them.

A further problem arises from misinterpreting mediation as competing with and aiming to totally replace the legal process. This potentially antagonizes professionals in both fields. Lawyers and mediators can do much more for their clients if they work with each other in co-operation and complementing each other's work, than if they are competitive and antagonistic.
Protection of women's individual rights and entitlements is a general societal issue, addressed usually within the legal and social service institutions. Mediators can protect women's interests only in conjunction with these institutions, complementing rather than replacing their work. Singling out mediation as the culprit for not protecting women's rights actually absolves other institutions from their obligations to do so. This is especially true if mediation is blamed in a context where the legal system is depicted as the ideal alternative.
Finally I want to comment on the exclusion of family mediators from the feminist community. In most of the feminist literature it is taken for granted that many professions have been transformed by feminist scholarship and activism and today we can hear about feminist therapists, or feminist lawyers. Many critics, however, still see 'feminist mediation' as an oxymoron. As in other professions there are mediators who consider themselves feminist and others who might be opposed to feminism. Feminists outside the mediation community should pay more attention to the various approaches within mediation and accept the fact that feminism and family mediation are not mutually exclusive.