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The Mediation Alternative: Process Dangers for Women

Grillo, Trina. Yale Law Journal, Apr. 1, 1991

(Abstract taken directly from article abstract) Some writers have presented mediation as a fairer and more humane alternative to our adversarial legal system, and one which is better for women. This view has been quite influential, and has spurred the growth of mandatory mediation of child custody disputes. In this article, Professor Grillo challenges this vision of mediation. She begins by outlining the potential benefits of mediation for women, as promised by its advocates. These include: an emphasis on context rather than on abstract rules; the inclusion of emotion; and increased self-determination for participants. Each of these promises, however, is unlikely to be fulfilled under a mandatory mediation scheme. As the author demonstrates, mediators often, in fact, take control out of the hands of the parties by discouraging the discussion of principles or the expression of anger. This can be especially disempowering for women, who face different societal expectations than do men and who may bring a more relational sense of self into the dispute. In conclusion, Professor Grillo argues that while the adversary system is significantly flawed, mediation as it is currently practiced fails as an alternative because it does not adequately respect the struggles and lives of its participants. Certain reforms suggested by the author would help mediation better live up to its promises.

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