A History of Divorce Mediation in the United States
Divorce mediation emerged in the United States most immediately with the adoption of “no-fault” divorce across the country, starting with California in the 1970’s. It did not emerge ready-made, out of thin air, however. Rather it emerged from a broader movement to develop alternative dispute resolution (ADR) processes in response to growing dissatisfaction with the adversarial legal system in the 20th century. The history of mediation can be situated within evolving legal and cultural attitudes toward conflict resolution, drawing from both grassroots community initiatives and institutional reforms, not necessarily divorce and family law.
Early Roots of Mediation in the U.S.
Mediation in the United States has deep roots in American legal and cultural traditions and perhaps even in an egalitarian American ethos. Judith Saul observes, “Mediation is rooted in a deep cultural preference for informal, community-based conflict resolution, often grounded in religious and civic values”¹. At the very heart of divorce mediation is the idea that couples themselves, rather than a judge, make the decisions about how to disentangle from each other. While informal mediation has existed in various forms since colonial times, modern mediation began to gain momentum in the 1960s and 1970s with the rise of neighborhood justice centers and community mediation programs.
The Pound Conference and the Rise of ADR
An intellectual milestone for mediation came with the 1976 Pound Conference (named after law professor Roscoe Pound), where Harvard Law Professor Frank E.A. Sander proposed the concept of the “multi-door courthouse,” envisioning courts offering a range of dispute resolution processes, including mediation². This vision inspired significant interest in ADR and laid the groundwork for mediation’s eventual integration into family law systems.
As Jay Folberg noted in his early overview, mediation’s growth was driven both by “practical concerns with court congestion and cost” and by a philosophical belief in party self-determination³. By the late 1970s, pilot programs for divorce mediation were being tested in several states, often in conjunction with family courts.
Institutionalization of Divorce Mediation
By the 1980s, divorce mediation was increasingly institutionalized, with courts in many jurisdictions either encouraging or requiring mediation in custody and visitation disputes. Jacqueline Nolan-Haley describes this as part of the broader “court-connected mediation” movement, which sought to integrate mediation into the judicial system while maintaining its core principles of voluntariness and neutrality⁴.
It’s important to note that two forms of divorce mediation emerged—court-required or court-based, and voluntary divorce mediation that was part-and-parcel of the “no-fault divorce” transformation. Court-based mediation might be required of a couple who were litigating in court. Critics have argued that this allowed a more powerful spouse to gain advantage over the other spouse because of the pressure to reach agreement in the institutional setting of a court divorce case.
“Voluntary mediation”, in contrast, was when couples decided to use mediation to reach agreements and have a neutral mediator or attorney prepare all court documents before a case even reached court. In this context, there is less pressure to reach agreement, and the couple are doing mediation based on their own free will rather than the order of a judge.
Divorce mediation gained rapid acceptance partly because it was seen as “a humane and efficient alternative to litigation, reducing emotional and financial costs for families”⁵. At the same time, research began to examine whether mediation actually met its promised benefits.
Research on Divorce Mediation Outcomes
By the 1990s, empirical studies evaluated divorce mediation’s effectiveness. Joan Kelly found that mediated divorces were generally less expensive than adversarial proceedings, though cost savings varied by case⁶. Robert Shaw’s meta-analysis reported that mediation tended to produce higher rates of compliance with agreements and greater satisfaction among participants⁷.
Perhaps the most influential long-term study came from Robert Emery and colleagues, who followed families for nine years after custody disputes. They found that parents who mediated had more frequent and positive contact with their children than those who litigated⁸. These findings reinforced the belief that mediation could produce not only procedural efficiency but also long-term relational benefits.
Theoretical and Professional Developments in Divorce Mediation
The legal profession’s engagement with mediation evolved over time. As Bryan Clark notes, lawyers initially viewed mediation with skepticism, concerned about its informality and potential to undermine legal rights⁹. In an adversarial legal system, lawyers were accustomed to zealous advocacy and the rights of clients to professional representation. Over time, however, many lawyers adapted their roles, serving as mediators themselves or representing clients in mediation, especially as no-fault, uncontested (amicable) divorces became a larger and larger percentage of divorce cases.
Eric van Ginkel’s analysis of U.S. mediation law shows how states developed statutes and court rules to govern mediation, often balancing confidentiality with enforceability¹⁰. These legal frameworks reinforced mediation’s legitimacy and clarified the roles of mediators and courts.
Contemporary Perspectives and Future Directions
Divorce mediation has moved from the margins to the mainstream of family law, but challenges remain in ensuring quality, accessibility, and fairness¹¹. Critics point to potential power imbalances between spouses and question whether mediation can adequately protect vulnerable parties. Nevertheless, the historical trajectory suggests that mediation will remain a central feature of U.S. divorce practice.
The history of divorce mediation in the United States reflects broader shifts in legal culture—from adversarialism toward more collaborative, problem-solving approaches—and to changing attitudes toward marriage and relationships. With roots in community traditions, court reform initiatives, and shifts in assumptions about marriage, it represents a successful development of a process that balances efficiency, fairness, and respect for human relationships.
References
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- Saul, Judith. ‘The legal and cultural roots of mediation in the United States.’ Opinio Juris in Comparatione 1 (2012).
- Sander, F.E.A. ‘The Varieties of Dispute Processing.’ Address at the Pound Conference, 1976.
- Folberg, Jay. ‘A mediation overview: History and dimensions of practice.’ Mediation Q. (1983): 3-13.
- Nolan-Haley, Jacqueline M. ‘Court mediation and the search for justice through law.’ Wash. ULQ 74 (1996): 47.
- Chantilis, Peter S. ‘Mediation USA.’ U. Mem. L. Rev. 26 (1995): 1031.
- Kelly, Joan B. ‘Is Mediation Less Expensive? Comparison of Mediated and Adversarial Divorce Costs.’ Conflict Resolution Quarterly 7, no. 1 (1990): 71-84.
- Shaw, Robert. ‘Divorce Mediation Outcome Research: A Meta-Analysis.’ Conflict Resolution Quarterly 18, no. 4 (2001): 429-439.
- Emery, Robert E., Laumann‑Billings, Lisa, Waldron, Mary C., Sbarra, David A., & Dillon, Peter. ‘Child custody mediation versus litigation: Outcomes at 9 years.’ Journal of Consulting and Clinical Psychology 69, no. 1 (2001): 1-16.
- Clark, Bryan. ‘The History of Lawyers and Mediation.’ Lawyers and Mediation. Berlin, Heidelberg: Springer, 2012. 1-28.
- Van Ginkel, Eric. ‘Mediation under national law: United States of America.’ Mediation Committee Newsletter (2005): 43-58.
- McEwen, Craig A., & Maiman, Richard. ‘Divorce and Family Mediation: History, Review, Future Directions.’ Family Court Review 56, no. 3 (2018): 417-432.
Blog post by Benjamin Bailey, PhD, Professor of Communication at the University of Massachusetts