Abstract
From the standpoint of the legal profession, divorce mediation is simply an alternative means of dispute resolution, and until now this has been the generally accepted view taken both by its advocates and by its opponents. Thus, divorce mediation has not questioned the legal nature of the dispute between the couple, or the fact that their divorce involves the determination of their respective legal rights and obligations flowing from their marriage. It simply questioned whether those legal rights and obligations had to be settled in an adversarial setting, and whether alternative procedures might not be both more appropriate and conducive to a resolution of the couple’s differences.
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Notes
Judith S. Wallerstein and Joan Berlin Kelly, Surviving the Breakup: How Children and Parents Cope with Divorce, (New York, NY: Basic Books, 1980).
The proceedings of this conference are contained in the American Bar Association publication Alternative Means of Family Dispute Resolution, (Washington, D.C., 1982).
Roger D. Fisher and William Ury, Getting to Yes, (Boston, MA: Houghton Mifflin Co., 1981).
Thomas S. Kuhn, The Structure of Scientific Revolutions, 2nd ed., (Chicago, IL: The University of Chicago Press, 1970).
One of the most important implications of Kuhn’s thinking is expressed in his principle of incommensurability. Paradigm shifts do not merely result in our looking at the same phenomena and seeing them differently. They also result in the fact that certain questions that were considered relevant in terms of the old paradigm are not only irrelevant in terms of the new one, but simply do not appear as questions at all. This is an extremely important principle and we will return to it again in Chapter 11, A Question of Choice. For the time being, it is sufficient to say that one of our most important recurring themes will be that in failing to understand the sense in which divorce mediation represents a paradigm shift, its advocates, as well as its critics, have continued to ask questions of it which, though they may be relevant in an adversarial context, are not relevant in divorce mediation. Since divorce mediation is obviously not the kind of paradigm shift that Kuhn was talking about—and we only invoke the term to employ what we nevertheless consider to be an important analogy—we would not suggest that they are inappropriate questions in Kuhn’s sense. But the analogy is sufficient enough to suggest, as we continually will, that they are still no longer appropriate or even relevant questions in the more limited sense of a paradigm shift that we are talking about. Since it will probably be easier for mental health professionals—and perhaps even those who are not—to see this in terms of marriage counseling rather than divorce mediation (divorce counseling), which is still seen as being basically a legal process, we would ask the reader, in each instance, to ask whether or not the question is one that a therapist would ask were the same couple to come to him for marriage counseling.
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Marlow, L., Sauber, S.R. (1990). What is Divorce Mediation?. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_1
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