WHAT WE KNOW NOW: FINDINGS FROM DEPENDENCY MEDIATION RESEARCH

After approximately 15 years of research on court-based dependency mediation programs, answers have emerged for many, but not all, of the questions that surround dependency mediation. This article explores what has been learned about court-based dependency mediation through research and what new and persisting questions remain. The article reviews empirical studies of child protection mediation. The topics considered include what we have learned about the organization and structure of mediation programs, what have we learned about settlement in mediation, and whether there are benefits to mediation beyond the mere fact that settlements are reached.     

商事调解的域外发展及其借鉴意义

随着全球对ADR的愈加重视,域外商事调解在调解机构和调解员的共同努力下经历了大发展的时期。一方面,商事主体对商事调解反应积极,调解员收入增加且队伍日益壮大。另一方面,调解机构的发展喜忧参半,国际商事调解虽有一定发展,仲裁仍然为国际商事纠纷主要解决手段。但无论如何,商事调解都有其不可替代的功能,商事调解市场也会更加成熟。域外商事调解的发展为起步中的中国商事调解提供了参考和借鉴。     

SPOUSAL CONSENSUS ON THE DIVORCE DECISION AND MEDIATION OUTCOME

This study examined the relationship between spousal consensus on the decision to divorce and mediation outcome. Based largely on clinical experience and deductive reasoning, the conceptual literature has held that low consensus is negatively related to success in divorce mediation. To empirically explore this relationship, 72 families beginning court-ordered divorce mediation were asked whether they agreed that divorce was the best way out of their problems. Statistical analysis of their responses as they related to the outcome of mediation did not support the conceptual literature. No significant relationship was found between spousal consensus on the divorce decision and mediation outcome, a finding which agrees with the limited empirical research. This indicated that mediation is more tolerant of spousal nonconsensus than had been assumed in the divorce mediation literature.     

香港特别行政区ADR发展的新动向——商事争议强制性调解机制的兴起

香港特别行政区(以下简称香港)长期以来坚持自愿调解机制,其近年来的司法实践和立法均有了一些新的发展。香港的民事司法改革极大地促进了调解机制的发展,改革后的香港正式立法虽然仍没有采纳强制性调解机制,但是通过处罚诉讼费用这种变通的方式同样达到了强制性调解的效果。建筑业是调解在香港运用得最为充分的领域。强制性调解,尤其是建筑业中强制性调解的兴起和发展,不仅为香港商事争议的解决起了引领作用,也进一步加速了香港ADR机制发展的进程。     

行政调解的制度价值、内生贫困与生长点

行政调解作为调解的一种类型体现了行政机关服务行政的鲜明特点。行政解纷独特的优势以及公众对行政机关解决纠纷的需求,使对行政调解的研究具有重要的价值。本文从调解的治理功能、政策回馈效果以及多元化解纷趋势三个角度探讨了行政调解的制度价值,并对行政调解制度的内生贫困所引致的具有任意色彩的行政调解实践以及实践载体的模型构建与研究阙如进行了分析。行政调解制度新的生长点,在于固定行为研究既得价值,推进制度文本的出台,并以此推动制度载体和制度实践的扩展。     

CHILD CUSTODY MEDIATION AND SPOUSE ABUSE

This article discusses domestic violence, providing information and a review of literature regarding this phenomena. The article then goes on to describe a protocol developed by the Orange County (California) mediation and investigative unit that provides protection to the alleged victim of violence through the use of assessment interviews, co-mediation with a male-female mediation team, and the development of postparenting arrangements that provide for protection and security. The article also reviews a sample of 100 domestic violence cases handled in Orange County during 1991. Data from this research suggest that mediators using the protocols described in this article are able to guide the more serious, high-risk cases into more protective outcomes and that mediation can provide a very important adjunct to the trial court process.     

Mediation as an alternative to criminal prosecution

In several American communities, paraprofessional mediation has become a substitute for criminal prosecution when defendant and victim have been engaged in a prior relationship. This article describes such a mediation project and its training program. It present a detailed account of two actual mediation sessions. An analysis of these sessions highlights some of the problems in mediating interpersonal disputes, particularly questions about underlying cause and the effects of different perceptions about the role of conflict in human interaction. The article also suggests a series of hypotheses to be investigated in further research on mediation.The research on which this paper is based was partially supported by grant No. 77-NI-99-0019 from the National Institute for Law Enforcement and Criminal Justice, U.S. Department of Justice. The views expressed are those of the authors only. We appreciate the cooperation received from George Nicolau and Ann Weisbrod of the Institute for Mediation and Conflict Resolution and from the staff of the Fosterton mediation project.     

Safety,Satisfaction, and Settlement in Domestic Relations Mediations: New Findings

Researchers and mediators have long been concerned about coercion, intimidation, and safety threats that could occur in mediation for cases where previous violence between the parties has occurred. Most of the research focuses on screening tools to identify parties at risk. When parties screen positive for intimate partner violence (IPV), some proceed to mediation and some do not, depending on the policies of individual mediation programs. But this misses a step: Some cases may benefit from mediation while others won't, but how can we predict whether mediation will be useful and safe in specific instances? This study uses survey data obtained from parties in domestic relations mediations to examine issues of safety, satisfaction, and settlement in the presence of various IPV behaviors.     

STANDARDIZATION OF DIVORCE MEDIATION

The importance of controlling for the effects of “mediator” variables has largely been overlooked in the mediation research. A survey of conciliation workers attached to the Victoria Family Court found no standard practice in the orientation of clients to the process of mediation, and the delivery of mediation services.     

THE MEDIATOR'S ASSESSMENT OF SAFETY ISSUES AND CONCERNS (MASIC): A SCREENING INTERVIEW FOR INTIMATE PARTNER VIOLENCE AND ABUSE AVAILABLE IN THE PUBLIC DOMAIN

Screening for intimate partner violence and/or abuse (IPV/A) in family mediation is important, perhaps particularly among cases without attorney representation. While most mediators agree that it is ideal to consider IPV/A in case planning, there is less agreement regarding the need to universally and systematically screen for IPV/A among all cases. Such attitudes are of concern, given research in other fields (e.g., medicine, couples therapy) and our own research in a family mediation clinic, which documents that the lack of consistent and formal IPV/A assessment results in underdetection of IPV/A. While a variety of IPV/A screening measures exist, each has shortcomings. Thus, our research and clinical experience led us to develop a new IPV/A screening measure, the Mediator's Assessment of Safety Issues and Concerns (MASIC). We discuss features of the MASIC and provide the full measure in the Appendix. The MASIC is a behaviorally specific IPV/A screen that assesses various types of abuse (e.g., coercive control, stalking, physical violence) over the course of the relationship and in the past year. It is administered as an interview to build rapport and assesses lethality indicators and offers optional recommendations for procedural changes in mediation based on IPV/A. Although we have begun relevant research, it is important to note that the MASIC has not yet been validated. Nonetheless, we recommend the use of systematic IPV/A screens in family mediation and suggest that such measures may prove especially important in providing unrepresented parties a safe and appropriate environment for mediation.     

Fairness in Animals: Where to from Here?

In the last decade, there has been an explosion of work investigating non-human species?? behavior as it relates to the human sense of fairness and justice. This research has provided a much needed evolutionary perspective on humans, and highlighted ways in which humans?? behavior is both similar to and different from that of other species. In this concluding paper, we outline the major threads of the work highlighted in this and the previous special issues of Social Justice Research and provide thoughts on future directions for the field. This is a very exciting time in our exploration of the evolution of human justice and fairness, and we eagerly await the developments of the next decade.     

“大调解”行动与“大调解”机制——以成都市大邑县为观察样本

大调解制度依托调解这种传统纠纷解决模式,以各种社会与政府资源的整合为手段,近几年来取得了较大的发展。对当今大调解工作机制的运作情况及实际效果进行实证分析研究结果表明,大调解机制在减轻法院工作压力等方面发挥了作用。但就纠纷当事人而言,较多的人倾向于法院调解,大调解机制的运行效果不够理想。改进的措施在于,充分发挥其他调解作为自发秩序的自治力量,强化其作用。     

民事诉讼调解模式研究

在民事诉讼调解社会化和构建多元化纠纷解决机制的当前语境中,从权力配置的视角对民事诉讼调解进行模式化的分析并提炼出权力独享型民事诉讼调解、权力共享型民事诉讼调解和权力分享型民事诉讼调解三个概念是对民事诉讼调解进行一般性研究的创新尝试,不仅可以为社会公众认知各式各样的民事诉讼调解提供智识上的帮助,而且可以通过对不同模式的民事诉讼调解之运作机理的概括、解释来为民事调解的现代转型提供支持。     

Shuttle and Online Mediation: A Review of Available Research and Implications for Separating Couples Reporting Intimate Partner Violence or Abuse

Whether family law cases with a history of severe intimate partner violence and/or abuse (IPV/A cases) should have the option of settling family‐related issues using mediation is the subject of significant debate. Recommendations for potentially safer ways to mediate IPV/A cases have been developed, including shuttle and online mediation. Given the current lack of research on these forms of mediation with IPV/A cases, we review the research on shuttle and online mediation in other contexts and theorize how the findings might apply to IPV/A cases. We argue that, although online and shuttle mediation may benefit IPV/A cases, aspects of these procedures require special considerations.     

Mediation in the Justice System:

The increasing use of mediation throughout the justice system has generated a debate about its implications for women. Although widely supported as a positive reform within the legal system, most women's roups oppose the use of mediation as antithetical to their short- an%long-term interests. The practice of mediation organized around an ideology of neutrality, privacy and consensusbuilding is applauded by its supporters as humanizing an unresponsive and sluggish legal system and condemned by its opponents as undermining the commitment of actors within the legal system to widenin the rights of women. This discussion explores the parameters of tks debate as the use of mediation has begun to change the delivery of legal services within the~us!ice,system. This paper suggests that the controversy about me iatlon 1s Important and in need of further discussion because it reflects significant disagreement about the function of law for women.     

Disputed child custody: strategies and issues in mediation

Disputed child custody is a significant life stressor for both adults and children. Recent efforts have been made to develop a model for family mediation and subsequent clinical strategies that can attempt to address the stressors involved in divorce and perhaps resolve, through mediation, the posttrauma stress experienced by both spouses and children. Reviewed is the literature on the impact of separation and divorce on families and the use of family mediation to resolve disputes. It further addresses psychologic factors involved in the mediation process and the possible effects of mediation on divorce. An established family mediation model for treatment is presented in detail, as are clinical issues often addressed in the family mediation process. Issues and import for clinical application and research are offered.     

REPRESENTATION DISPARITIES AND IMPARTIALITY: AN EMPIRICAL ANALYSIS OF PARTY PERCEPTION OF FEAR,PREPARATION, AND SATISFACTION IN DIVORCE MEDIATION WHEN ONLY ONE PARTY HAS COUNSEL

While other authors have regarded both the presence and the absence of attorneys in family law mediation as cause for concern, little attention has been given to the questions raised when one party is represented and the other is pro se. This article presents data on mediating parties' premediation concerns, fears, and feelings of preparedness, as well as their postmediation satisfaction with the mediation process. The mediating parties are grouped based on each couple's representation status, for example, both represented by attorneys, both pro se, or one attorney‐represented party and one pro se party (mixed representation cases). The data show that mixed representation cases are the most likely to report concern, fear, and unpreparedness. Mixed‐representation cases also reported the lowest levels of satisfaction after the mediation. Some implications for mediation practice are discussed, as are suggestions for future research.     

商事仲裁在法价值意义上的探讨

商事仲裁作为解决争议的一种救济方式,相对于调解、诉讼,有其独特的优势所在,这也是仲裁在法价值意义上值得探讨之处。本论文即从商事仲裁的概念、范围引申出仲裁与调解、诉讼的异同比较,然后说明仲裁特有的优势,最后探讨仲裁在法价值上的意义,并从中体现仲裁最终达到正义、公平的法的价值的目的。     

FACTORS AFFECTING THE OUTCOME OF DIVORCE AND PATERNITY MEDIATIONS

Divorce mediation, an alternative to litigation when resolving disputes raised by the dissolution of a marriage or the separation of unmarried parents, has gained popularity over the past few decades. Yet, research is needed to better understand what processes make family mediation successful and for whom family mediation is successful. To study predictors of reaching agreement in family mediation, we gathered data from divorce and paternity cases at the Indiana University Maurer School of Law Viola J. Taliaferro Family and Children Mediation Clinic. Numerous factors, including history of intimate partner violence, father's reported concerns about participating in mediation, higher levels of father's income, number of mediation sessions, and attorney representation, were associated with lower rates of agreement. Associations between significant predictors are presented, as well as the combined impact of attorney representation and a history of relationship violence, which together significantly predicted lower agreement rates. The implications of these findings for understanding family mediation processes are considered.     

MANDATORY MEDIATION OF CUSTODY IN THE FACE OF DOMESTIC VIOLENCE

Mediation is frequently mandated as a first step for custody, visitation, and divorce cases. As a process that requires a balance of power between participants, mediation is not an appropriate method to resolve domestic violence disputes, a phenomenon that reflects profound disparities in power between the perpetrator and the victim. Of all marriages referred to court-based divorce and custody/visitation mediation programs, 50% to 80% involve domestic violence. This raises very serious questions about mandatory mediation. This article considers the effects of domestic violence on the mediation process. It questions the use of mandatory mediation and suggests ways that mediators might recognize and respond to domestic violence.