Does Mediation Systematically Disadvantage Women?

When state legislatures enabled spouses to obtain divorces without proving fault, one of the real achievements was lower transaction costs. Although the benefit of lower transaction costs for divorce is not completely noncontroversial, the relaxed proof requirements mean that lawyers do not necessarily have to be involved in divorce proceedings. The vast majority of marriage dissolutions involve written agreements between the parties. No-fault divorce also energized the divorce mediation movement. Mediation is the least intrusive form of third-party involvement in a dispute. Whereas a judge or arbitrator imposes an outcome on the disputants, the mediator assists the parties in reaching a mutually satisfactory agreement. The mediator helps to identify the issues, reduce misunderstandings, vent emotions, clarify priorities, find points of agreement, and explore new areas of compromise and possible solutions. Family mediation is seen as an opportunity to provide divorcing couples with an opportunity to nurture their necessarily continuing relationships. No longer must the divorcing couple engage in legal combat. A group of nonlawyer divorce mediators explains that mediation was believed to be more expeditious, less expensive, procedurally reasonable, and amenable to truth-finding and the open airing of differences when compared to the adversarial system. Further, feminists heralded mediation because it promised to consider disputes in the language of relationships rather than individual rights. This paper examines if there is anything inherent in a woman\u27s character that disables her from bargaining effectively in mediation. In other words, the question is whether a woman operates like a man when making choices. Specifically, I test two prominent challenges to women\u27s ability to mediate on par with their husbands: their propensities toward risk aversion and altruism (or communitarianism). These concepts resemble what Robert Mnookin refers to as unequal bargaining power