Tearing Down the House: Weakening the Foundation of Divorce Mediation Brick by Brick

Mediation is an attractive alternative to traditional litigation. In the last decade the use of mediation in family law has increased substantially. Mediation is particularly suited to family disputes when the parties voluntarily choose to use the process because it can help the parties resolve disputes and foster long-term relationships. Not all parties, however, are given a choice between mediation and more traditional adversarial justice. Currently, state legislation ranges from permitting mediation to mandating mediation. Mandatory mediation raises the issue of due process violations, especially in situations involving spousal abuse. This Note analyzes the use of mediation in domestic relations cases and specifically looks at the use of mandatory mediation in situations involving abuse. The author suggests that when mediation is voluntary it can be a useful tool in resolving domestic disputes, including divorce and child custody issues. When mediation is mandated, however, it violates the participants\u27 due process rights under the Fourteenth Amendment-- especially in situations where one of the parties has been abused by the other. The author suggests that mediation should remain voluntary, that statutes should provide for mediation only when parties are willing to participate, and that mediators should screen for abuse and discontinue the mediation process if abuse is discovered