Finding out If It Is True: Comparing Mediation and Negotiation through Research

In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does mediation ideology and suggests a wide range of hypotheses to guide future research. Finally, we reexamine briefly the research about preferences for mediation and the modest body of existing studies that do contrast litigant experiences with mediation and unaided negotiation in the context of litigation. This reexamination hints that it may in fact be true - that is, participation in mediation may enhance parties\u27 perception of procedural justice. Before we can be confident in the answer to this question, however, research is needed that carefully compares the experiences of parties in mediation with those in unassisted negotiation

Lawyers, Mediation, and the Management of Divorce Practice

Despite a widespread assumption that divorce mediation and divorce lawyers are incompatible, lawyers do play active-if largely unexamined-roles in many mediation programs. This article reports on the work of lawyers in a state with mandatory mediation. We find that lawyers in Maine have generally embraced mediation because it helps them manage problems inherent in divorce practice. Mandated divorce mediation facilitates both settlement negotiation and trial preparation, permits client participation in decisionmaking without requiring lawyers to surrender control, provides a forum for resolving both legal and nonlegal issues, and promotes efficient case management

Gender and Specialization in the Practice of Divorce Law

In the past two decades, the gender composition of the legal profession in the United States has changed dramatically. While women comprised less than five percent of the nation\u27s lawyers in 1970, the proportion of women lawyers had increased to more than 19% by the end of 1988, and roughly 40% of new lawyers each year are now women. However, the movement of women into the legal profession has not been easy. As a consequence, considerable commentary has been focused on the significant problems of sexual harassment, discrimination, and other forms of gender bias, and on such issues as the challenges of combining career and family for both women and men in the law. Far less attention has been devoted to understanding whether the entry of larger numbers of women into the profession has altered lawyer behavior, legal ideology, or legal practice. Carrie Menkel-Meadow has suggested how women may bring new assumptions, values, and voices to lawyering, possibly transforming current legal practice. Others have cautioned against underestimating the power of law school and the legal profession to homogenize orientations toward practice. In a national survey conducted more than 25 years ago, James White found that 49.8% of all female lawyers worked in domestic relations law, in contrast to 38.6% of the male lawyers. The recent increase in legal specialization has lowered that figure for both women and men (as fewer attorneys accept divorce cases as part of a general practice), yet women remain disproportionately over-represented in the divorce law field. In this Article we explore some gender-based differences (and similarities) among divorce lawyers

Gender and Specialization in the Practice of Divorce Law

In the past two decades, the gender composition of the legal profession in the United States has changed dramatically. While women comprised less than five percent of the nation\u27s lawyers in 1970, the proportion of women lawyers had increased to more than 19% by the end of 1988, and roughly 40% of new lawyers each year are now women. However, the movement of women into the legal profession has not been easy. As a consequence, considerable commentary has been focused on the significant problems of sexual harassment, discrimination, and other forms of gender bias, and on such issues as the challenges of combining career and family for both women and men in the law. Far less attention has been devoted to understanding whether the entry of larger numbers of women into the profession has altered lawyer behavior, legal ideology, or legal practice. Carrie Menkel-Meadow has suggested how women may bring new assumptions, values, and voices to lawyering, possibly transforming current legal practice. Others have cautioned against underestimating the power of law school and the legal profession to homogenize orientations toward practice. In a national survey conducted more than 25 years ago, James White found that 49.8% of all female lawyers worked in domestic relations law, in contrast to 38.6% of the male lawyers. The recent increase in legal specialization has lowered that figure for both women and men (as fewer attorneys accept divorce cases as part of a general practice), yet women remain disproportionately over-represented in the divorce law field. In this Article we explore some gender-based differences (and similarities) among divorce lawyers

Avocats et divorce aux Etats-Unis: la transformation des pratiques professionnelles

Les transformations sociales et les évolutions juridiques qui sont intervenues aux États-Unis depuis les années 60 ont eu de multiples effets sur le travail des avocats en matière de divorce. Le présent article analyse ces transformations en s\u27appuyant sur des entretiens avec des avocats et sur l\u27analyse de l\u27activité des tribunaux dans les États du Maine et du New Hampshire. Il souligne notamment l\u27importance que revêt l\u27accroissement du nombre des divorces parmi les couples ayant des ressources moyennes ou faibles. Il décrit aussi la féminisation rapide du barreau, une tendance qui se trouve particulièrement accentuée en ce qui concerne les spécialistes du divorce. Sont également évoquées les règles nouvelles qui s\u27appliquent à la garde des enfants et à la division du patrimoine familial. L\u27analyse faite suggère que le rôle des avocats en matière de divorce s\u27est fortement différencié en fonction des catégories sociales qui constituent leur clientèle et du degré de leur spécialisation ; elle met en évidence le développement d\u27une approche féministe du travail de l\u27avocat du divorce, à l\u27initiative de quelques avocates, en même temps qu\u27elle montre que les changements légaux et l\u27introduction de la médiation ont réduit le conflit judiciaire dans ce domaine. Social and legal changes in the United States since the I960\u27s have affected the practice of divorce law in a variety of ways. This article analyzes these developments by drawing on interview data and court records from the states of Maine and New Hampshire. Prominent among the changes examined are the increased incidence of divorce among middle and lower income couples; the rapid rise in the number of women attorneys, a trend particularly notable among divorce specialists; new rules governing child custody and division of marital property; an increased use of mediation in divorce cases. The analysis shows, for example, how the roles and work of divorce lawyers have become differentiated according to the class of clientele and degree of legal specialization, how some women lawyers have brought a new style of feminist advocacy to divorce, and how legal changes and the introduction of mediation have reduced adversarial legal conflict in divorce