| This study is a discourse analysis that examines the pre-eminent divorce mediation literature to see what the authors say is problematic about law as a process for resoling divorce disputes and how they describe mediation, an alternative process. The implication in the literature is that mediation is an improvement over litigation. Keiser compares the two processes to see if mediation in fact avoids the problems the mediation authors found in law. The study concludes that mediation replicates many of the authors' critiques of law.; Both processes are inherently adversarial. Mediation replicates a win-lose distributive analysis.; Divorce mediation parties are not granted more autonomy than parties who hire attorneys. The mediator, while more neutral than an advocate, does not achieve neutrality if neutrality is defined as impartiality, as freedom from favoritism or bias, or equidistance. The mediation authors recommend that the field develop and standardize procedure and rules of behavior for the parties and for the mediator yet they fault law for having rules that govern and ritualize the behavior of all participants. In both processes, standardization is contrary to the mediation goal of autonomous individualism. The rules of practice crafted by the various mediation authors resemble law's formalism.; Although the authors fault law for relying on statutes and precedents to determine how cases will be resolved, mediators, like lawyers, categorize, generalize, and fit problems into familiar patterns which leads to a process and results that are not custom-tailored. Attention to societal norms also impedes individually tailored solutions.; Cartesian analysis, a tendency to see things in terms of either/or, pervades mediation as it does law and limits the topics attended to. Mediation, like law, replicates a masculine way of thinking, analyzing, and being in the world. Power and hierarchy rear their heads in both processes.; The agreements reached via both processes are primarily instrumental. Emotional and other non-instrumental issues receive little attention in both processes. |
