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THE HANDBOOK OF DIVORCE MEDIATION

by Lenard Marlow & S. Richard Sauber New York: Plenum Press, 1990 Reviewed by: Carl D. Schneider

This is a fascinating and, at times, maddening book. Marlow and Sauber have written a book like few others in the field. Most mediators have made a kind of peace with attorneys and the adversary system, and tend to practice out of stance which might be characterized as complementary and collegial. Not the present book.

Marlow and Sauber throw down the gauntlet. They wish to take on the adversary system directly, and they make a sustained case that the adversary system is in fact fundamentally harmful to parties, fails to live up to its representations that it protects clients, and is counterproductive to achieving settlements. They place themselves squarely in the breach, attempting to stem what they call “the unthinking incorporation into mediation practice of concerns based upon adversarial principles, principles that have nothing to do, and which are inconsistent, with those that should properly inform divorce mediation.” No accommodators or appeasers here.

The book is full of quotable take-no-prisoners prose: the effect, Marlow and Sauber write, of the adversary system’s characterizing the divorce dispute “in terms of legal rights has been to have dipped each of the parties in legal cement, and, as they will soon find out, it is also very fast-drying cement.”

Marlow and Sauber at times throw out pearls that frame well-worn old issues in fresh ways. Regarding the issue of “discovery” and full disclosure of assets, they say, “To be sure, people do lie on occasion, but they also tell the truth. Thus, the question is not whether people are honest or are liars, but rather what circumstances and conditions (in what context) they are more likely to lie or more likely to tell the truth.”

Again, regarding “having cast the proceedings in a context that encourages the parties to dig deep holes in which to hide their valuables, it then becomes necessary to provide each of them with shovels to uncover them.” They go on, matrimonial attorneys “will not find very much. The world is a very big place in which to hide things, and it is a lot easier to hide them than it is to find them.”

The chapter on “Context” is a very rich and thought-provoking one. Marlow and Sauber argue that mediation is “not by definition a negotiating process[!]” Instead, they argue that it is best viewed as one of “mediating in a common cause,” and that “the question is not what kind of a process divorce mediation is, it is what kind of process we wish it to be… what you see is what you get.”

I applaud Marlow and Sauber in making a strong argument for their position, but fear that their language and stance in some areas will lead many to dismiss the book without really engaging its authors in their thought-provoking essay. Probably most disturbing is their treatment of the domestic violence issue, which is mentioned only in passing, as one of several items the authors think it is “misguided and ill-advised” to inquire about in the initial session. Similarly, though a proponent of joint custody myself, I thought unfortunate their characterization of women’s groups opposed to joint custody as those for whom “when the yardstick of “fair” conflicts with what is best for women, that yardstick is simply discarded… these groups do not want what is fair for women; they only want what is best for them.”

Marlow and Sauber see their book as one that would serve as both an introductory text as well as a guide for experienced mediators. The authors, however, have a great many things for which they do not present the pros and cons, but take a firm position on. Examples: mediators should use an “advisory attorney;” opposition to formal written agreements to mediate; seeing children in mediation should generally “not be done”; parenting issues should be mediated before financial issues; mediators should simply accept that “confidentiality does not exist” for mediation; mediators should “avoid” caucusing, and so on. In this respect, I think the book better advised for experienced mediators.

Regardless of our response to particular positions they take, Marlow and Sauber have done us the service of presenting a book introducing divorce mediation not simply in terms of technique, but as a practice which grows out of a thought-through perspective.

Reviewed by Carl D. Schneider, Ph.D., Atlanta, Georgia

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