Abstract
In fact, unlike in the past, the society has accepted gay couples, leading to an increase in the number of such relationships. Thus, there is a reality of conflicts that relate to such relationships that should be adequately understood and addressed. Mediation is one of the processes that can be used in addressing conflicts regardless of the context. However, the reality is that gay couples are different from heterosexual couples and there are still inadequate legal guidelines in mediating within the gay couples’ context. While there has been an increase in the legal recognition of the legal rights and obligations relating to the relationships, there is still need for change in the area of addressing conflicts affecting such couples.
Family and Divorce Mediation for Same-Sex Couples
Introduction
Mediation lays the ground for same-sex couples in need of making their relationships intimate and dealing with the implications of divorce. However, for success in mediating between homosexual couples, the point of reference should be comprehension of the context of the conflict. Indeed, such approach will indicate the exceptional nature of the conflicts involving homosexual couples as they differ from those occurring between heterosexual couples. It should be noted that such conflicts could arise at any point in the relationship, including as the relationship begins, as it progresses, and in such a case, where a need for a divorce arises. Roberts (2014) suggests that for most homosexual couples, the relationship stages evolve in a far less formal manner when compared to heterosexual relationships, including marriage. The complexity of the situation arises mostly from the reality that in most states, gay relationships, and same-sex marriages are still illegal. Indeed, there is the limitation in the legal structures for addressing conflicts that arise in such relationships and marriage. Therefore, the complexity involved in mediating between same-sex couples is a topic that necessitates further exploration; hence, the rational for this discussed and analysis.
Mediation Among Same-Sex Couples
From a legal perspective, Roberts (2014) suggests that the need for mediation arises in a context of context. Kennedy (2012) supports the claims by suggesting that the context of the conflicts underlies the form of negotiation to be adopted. Thus, among the gay couples, as compared to heterosexual couples, there are considerable differences. Among the couples, the conflict can start for the first time at the beginning of the relationship, either concerning the “prenuptial” matters of money, property, or other assets, or in relation to planned adoption or pregnancy. The reality emanates from the more informal manner in which most of the same-sex relationships, including marriage (Roberts, 2014). However, the importance of mediation is a subject that cannot be ignored, even in a legal environment, based on the reality of increasing same-sex relationships, most culminating in marriage and where the children are involved.
Marriage between same-sex couples is emerging as a new paradigm even in the legal context, which means that it is an area that is yet to be adequately explored. In most states, the marriages remain illegal, while others are in the process of legalizing gay relationships. Additionally, Kennedy (2012) adds that the domestic partnership, as well as civil union registrations, do adequately relate to the same-sex couples as they do for heterosexual couples. The existing legislations lack the equivalent social significance or symbolic implication for such couples. Therefore, the majority of the same sex relationships experience their transition in a more informal manner from dating to marriage, or to long-term commitment (Oleske, 2015). Evidently, issues associated with formation of relationships among gay couples characteristically emerge in relation to specific financial events, like buying a house. In that aspect, it means that the commitments are never based on the predictable societal or legal milestone like marriage. Therefore, such are the important issues that should be taken into consideration in developing the framework for the negotiations.
Another unique aspect of the relationship and mediation between same-sex couples is as relates to the way the children appear. In the case of the heterosexual couples, children are as a result, intended or unintended, of a sexual activity. Such differs from the same-sex couples’ situation, where children are a consequence of a deliberate plan, through adoption, or birth where the aspect of egg donation is considered. Questions of insemination have emerged in the cases of lesbian couples, where the role played by the egg donor cannot be ignored. There is an additional situation where the role of the gestational mother is also considered (Roberts, 2014). In the case of gay men, there is complexity in terms matters concerning sperm or egg donation, adoption, or surrogate mothers. In that concept, it forms the basis of the conflicts between the gay couples somewhere along the way. Greater complexity emerges mostly during a time when the couple breaks up and has to go through a divorce. The manner in which the child came into being can make an already complicated issue even more multifaceted.
Family and Divorce Mediation
The recent past has witnessed major achievements regarding the legal acceptance of gay couples and relationships in different states in the United States and different countries across the world. In fact, it suggests that there is an increase in the number of gay couples who are in committed relationships where even the children are involved. However, Kennedy (2012) suggests that the changes have not been all-encompassing as there are many areas of such relationships that do not exist in the law. The area of mediation when it comes to the same-sex relationships is one of the areas that remain uncovered by the law. The increasing awareness of the matters relating to the gay couples is yet to touch on the issue of mediation in conflicts that arise at different points in the formation of the relationship. Many researchers have investigated some successes and problems involved in ensuring success in gay relationships. For instance, given the fact that the legal system in the United States remains inaccessible for the gay couples, mediation in the conflicts affecting them has remained problematic. Major changes are still necessary to make things better for the community.
According to Oleske (2015), it is evident that while there is no underlying legal spectrum of family law for same-sex families, the framework for addressing divorce disputes between same-sex couples can only be guided by the economic and limited protection pathway for lesbians and gays. Ideally, most couples come into being through joint ownership of property or assets, which end up causing the need for commitment. Such is the underlying basis for the legal and social framework as far as the negotiations are concerned. Oleske (2015) further establishes that the longstanding civil breach of contract offers the conceptual dimension for addressing the challenges of divorce among same-sex families. The implication of this legal environment depicts the definition of same-sex marriage, its future expectation, and the general atmosphere of the gendered society. It is necessary to come up with a better understanding of what it means to have gay couples and what the relationships means to the society. Regardless the fact that there are some basis for negotiations, the complexity due to lack of adequate legal guidelines cannot be ignored.
Challenges Involved in Family and Divorce Mediation
Major challenges are faced by gay couples, which should be addressed from a legal perspective to make negotiations more effective regarding when they engage gay couples. Kennedy (2012) suggests the importance of recognizing the reality of such families in the modern society, thus, the importance of developing legal principles that have implications on their relationships. Long-term gay couples are faced with challenges that differ from the challenges faced by heterosexual couples, and which form the basis for conflict negotiation. In the recent past, there has been an extension of marital obligations and rights to same-sex couples in some states. Such a development has initiated most couples to re-assess and even to further change their current legal arrangement by getting into marital unions. Many of the heterosexual couples have emerged against a fixed legal environment as well as steady social expectations. On the contrary, same-sex couples have to navigate the relationships around a speedily transforming framework of legal and social values, making their relationships more complicated.
Family and divorce mediation provides an opportunity whereby same-sex marriages achieve cooperation in the event there are challenges in the relationship. According to Kennedy (2012), it is plausible to note that the management of arguments in divorce mediation sessions. Based on the advantage that mediation offers a chance for same-sex couples to address their problems in a neutral setting, the use of a third party facilitates the process of resolving some custody disputes. Through the solution-based approach inherent in the pathway of mediation, same-sex couples can develop and maintain effective plans of addressing the challenges of divorce. Legal cases have characterized the significant trends that the interactions organization in mediation within divorce cases among the same sex couples is different from ordinary conversations. In that aspect, it involves a system of turn-taking and the disputants address the mediator rather than addressing each other. Roberts (2014) notes that it is common to find exchanges during the negotiation, which disputants speak directly to each other and do not always observe the system of turn-taking. The implication of this thought from a legal dimension shapes the trajectory that in some cases; the disputants initiate the exit to their arguments instead of relying on the mediators to do it.
The nature of conflict shapes the understanding of social and legal frameworks in mediating disputes of same-sex divorce. Roberts (2014) underscores that it becomes imperative for same-sex couples to recognize the extent to which the disputes are handled in family law. With little legal framework guiding the mediation process, most jurists have borrowed from the out of court settlement to facilitate the dissolution of the same sex marriages. The model of brief strategic family therapy (BSFT) is a family based dispute resolution that aims at correcting the behavioral problems of the youth, couples, and the children involved in conduct problems, sexual risk behavior, drug use, antisocial, violent behavior, power struggles and so forth (Oleske, 2015). While mediation calls for a nuanced awareness of how and when the disputes emerged, the most critical legal aspect stems from the deep understanding of the rights and duties of the partner. The model works by increasing the protective factors and reducing the risk factors through the improvement of family interactions that are assumed as the cause of the symptoms (Kennedy, 2012). The trajectory of the legal framework of divorce demonstrates a dramatic shift in the nature of divorce, dissolution of same-sex marriage, and extension of the obligations and marital rights of the couple. In certain states, it is critical that the courts impose marital rules on registered same-sex couple. To illustrate, it emerges that in 2008 in California, there was an enactment of the law that made it clear for the same-sex couples to sign a preregistration agreement. In essence, such registration provides a retroactive extension of marital rights among the same sex couples.
Oleske (2015) reveals that to increase and sustain the level of intimacy and success in a relationship, there is a need for couples in same-sex relationship to have equal powers. Power imbalances can destroy intimate relationships. Mediation builds on the proposal that issues related to ego, domestic chores, finance sharing, ex-spouses, friends, in-laws, and property trigger problems in the relationship. Power struggles may lead partners alienate each other even if they live in the same house. In that case, the model of brief strategic family therapy (BSFT) guides the solutions. Mediation shapes the belief that divorce is not the ultimate solution but instead the couples should find an alternative way out. To address the problem, same-sex couples should re-establish broken down communication lines to reduce arguments by adopting the power of the two.
Current Legal Frameworks
The recent decades have witnessed an increase in the number of states that have acknowledged the legality of same-sex marriages, which underlies the increase in the number of such unions. As of 2008, “the extension of marital rights and obligations to the registered or married couples” is one of the drastic changes in the character of same-sex dissolutions. The changes have taken in place in eight states in the country. The expansion in California comprised an imposition of marital regulations on the state-registered domestic partners (Oleske, 2015). Previously, such partners were awarded with limited benefits when compared to heterosexual couples. Such changes have transformed the dynamics of relationship formation among the same sex couples, as far as they are being considered as partners and can enjoy the rights and obligations just like other partners. However, the law has also created new challenges for the couples, primarily regarding dissolution based on the rules in place.
The emergent laws retroactively extend the marital rights and obligations to partners who had registered during the period when the rights did not apply. Such move created challenging sets of dynamics in the situation where dissolution is required, and for the couples that registered following the new law. In “Vermont, Oregon, New Hampshire, the District of Columbia, and Connecticut,” there was the creation of a new regime (Fine & Harvey, 2013). Marital rules in New Jersey are now applicable to the couples who are newly registered under the established law. The new law does not affect the couples that were already registered before the law. Legal marriage in Canada and Massachusetts is currently available for gay couples without any requirements for residency for the individuals wishing to get married in Canada. However, for Massachusetts marriages, there is a requirement for residency to be able to register under the new rules.
In the states where such changes have taken place, the rules have mostly changed the dissolutions for gay couples. However, Wahlert & Fiester (2012) add that break up of relationships involving gay couples, even in the states where the law does not allow legal marital rights is a complex issue. With the changes, there are new sets of complications since there is the legal binding of the couples who have registered under the new rules. Fine & Harvey (2013) bring out a further complication by suggesting that tens of thousands of such couples have signed up without adequate understanding of the marital rules. Most pointedly, in California, the rules governing such unions were not in place during the early days of the domestic partnership registration. Additionally, those who signed at the time had an inadequate understanding of the unilateral opt-out method. As such, the motivation for different couples when signing up differed, which means that the legal framework for the breakups cannot be taken in unison. Such complications suggest that the legal changes did not make the negotiations following the breakups any easier.
Implication of Divorce Mediation
In the case of mediation, the couples attended divorce sessions in a bid to resolve their disputes. Although in some cases the mediator was the one who initiated the exit to disputants’ arguments, in some cases, the disputants themselves initiated the exit. Research shows that there are so many similarities between ordinary conversations and interactions in mediation sessions (Aguirre, 2013). The findings are important as they provide the real picture in divorce mediation sessions. The research implies that it is premature to make generalized conclusions about management of conflict in mediation without a clear understanding of the same. The negotiation process highlighted the need to come up with adequate understanding of the environment within which the conflict occurs. Therefore, having the knowledge of the scope should be the case given the reality of the exceptional nature of the conflicts affecting gay couples. An understanding of how the conflicts differ from the typical conflicts involving heterosexual ones highlights the basis for success of such negotiations.
The adoption of the mediation process in the court systems of many countries and its reception is critical is addressing aspects of divorce among the same sex couples. While research has established that there is a growing concern on the appropriateness of divorce matters being addressed in court, the application of the legal statutes offers varied perspectives on the hypothesis that although mediation is appropriate in some cases, it is unsuitable in cases that involve hidden cash (Cahn, 2013). The reality on the ground is that there is still inadequate legal framework for addressing divorce involving same-sex couples. Negotiations during divorce have always involved heterosexual couples, with the involvement of gay couples being a new phenomenon. According to Aguirre (2013), conventionally, dispute resolution involving the court assumes the law, and such is not available in the current legal system. Thus, for effective negotiations, the beginning step should be a change in the law.
The lawyers participating in the process of mediation indicated that it was easier for a person to tell the truth when under oath and with the judge facing the disputants. However, it is plausible to note that some couples in the same-sex environment exhibited a trend that they were more likely to follow their agreement and comply with it if it was reached through the mediation process. As a result, it is palpable that the mediation process is better than litigation without giving exceptions. Indeed, this can be attributed to the fact that the processes are subjective to the cases they have handled. According to Wahlert & Fiester (2012), it is similarly important to underscore that courts can utilize the legal principles of mediation to determine cases of divorce among the same sex marriages to be solved through the mediation process. Studies imply that not all divorce cases should be solved using the mediation. However, the most effective method for solving the conflict entails the uniqueness of the case in question.
Indeed, to have an effective mediation supported by legal mechanism, it is critical that the same-sex couples in the divorce process agree on the mediator as a sanction by the court proceedings. The mediator should, therefore, understand the parties that are trying to resolve their conflicts are making them dispute and what is the interest of the parties. In addition, the arbitrator should take everything in detail when it comes questioning both parties (Aguirre, 2013). However, the approach is contrary to the judicial method where the evidence and legal statutes have to create options and alternatives in case the parties in conflict appear to be unable to have an agreement. Hence, in this case, the option should be achievable and extremely realistic, and it should be acceptable and conducive to the parties. Arguably, the distinctive feature in these two societies implies that a mediator should treat the parties with almost respect and apply a high level of dignity so that the parties can present their grievances to the negotiator openly and can feel secure to voice their concerns.
Negotiation conceptual literature can be applied in resolving different types of conflict and dispute that are facing a particular area (Cahn, 2013). The literature entails the use of the descriptive theory, which helps the mediator and the warring parties in understanding what is happening and what are the choices of the parties. Then, the parties will look at their choices and then know how to prepare. The negotiation will then proceed where a comprised approach is adopted by applying the prescriptive theory. In any mediation mechanism, it is necessary to look at the elements of a successful negotiation. The idea behind the theory is for the negotiation to be mediated by an individual with adequate understanding of the dynamics involved in the formation of the gay couples (Aguirre, 2013). Regardless the importance of such legal representatives, they remain inadequate; hence, indicating the need for change to include a conceptual framework in the training of such representatives.
Analysis
The development of a family policy in the 20th century has been instrumental in the current changes in the family set-ups across the globe. Legally, the policy was aimed at encouraging the adopting governments to regulate the lives of citizens and their relationships. Among the most important provisions of the family that most nations have adopted include the gender equality, sexual reproduction, inheritance, and domestic violence. With the family policy spreading to other parts of the world, several nations have embraced it by changing their marriage and family Acts to accommodate its provisions. However, several nations have used the gender and equal rights to promote same-sex activities and marriages for their citizens (Cahn, 2013). In Australia, there have been deliberate attempts to promote the use of mediation in addressing the disputes of divorce among same-sex marriage through the amendment bill to their family law Act. However, the enacted Act has received much opposition.
In essence, a family policy was seen as a state intervention into the affairs of family life that were aimed at promoting the well-being of the family through ensuring equal treatment of spouses, equal distribution of roles, and proper raising of children among others. The Family Act of 1975 has been instrumental in the promotion of family values aimed at raising a healthy family through settling of disputes of inheritance, negligence, and assisting in promoting the rights of the children. In Sweden, the gender, and equal rights provision within the family policy has been used to introduce the same-sex marriages into their family systems (Oleske, 2015). However, Fine & Harvey (2013) suggest that there is still inadequate acceptance of gay relationships in most societies. Where such is the case, negotiation becomes a highly complex process since it lacks the basis in law and society. For an effective process, the society must be ready to accept all the aspects connected to the same sex relationships.
Proponents of same-sex marriages argue that equality embraces a form of choice and there should be no interference by the government in the choices one makes, including marrying from the same sex. In this regard, the federal government has time rejected for a long such marriage arrangements and thus still considers them as de facto relationships. Adaptation of Marriage Equality Law at the federal government level may be due to the declaration by the Supreme Court that the law is constitutional or when the parliament votes for it otherwise, it is the prerogative of the individual states to determine the status it can accord the law and those who have to formalize their relationships (Cahn, 2013). With the equal marriage rights bill being voted down in September 2012 by the Australian Parliament, there is a need to consider its provisions. Although some states have already endorsed the same-sex relationships, proponents’ of equality declared thereafter that with time and enough pressure towards the process, the marriage equality would gain support. In essence, it means that the aspirations of the advocates for equality will not end soon.
It is worth noting that some states have endorsed same-sex marriages in Australia, but the federal government has not incorporated the law in its constitution. Therefore, there exists a conflict of the law, which does not permit individuals from a state that allows the law to a state that does not. According to Wahlert & Fiester (2012), with its legislation, there will be freedom of movement to all parts of the nation irrespective of the marriage affiliations. The same applies to the United States and other countries where same-sex marriages are being accepted. However, even in the countries and states where this is the case, the changes are still underway to come up with a system that touches on all the elements of same-sex couples, including marriage, children, and divorce (Oleske, 2015). Until such a milestone is achieved, there will remain a challenge in dealing with the problems arising at whatever point in the relationship, such as in the event of divorce where children are involved.
With the advantages of mediations, same-sex marriages are going to blossom in the future. In fact, this is mainly due to the inevitable social changes that are ever constant in the society (Cahn, 2013). The hyped advocacy for the rights of same-sex partners is also helping to cement the gay and lesbian relationships. It has given the same sex marriage the legal and moral support that it needs to blossom. In the coming decades, it is expected that lesbian and gay rights legal frameworks will be enacted and observed across the globe, even in the countries that same-sex marriage is so far not allowed (Aguirre, 2013). Indeed, it implies that mediation in the same-sex marriage is headed to being a common tradition in the future. The same sex couple will have gained a wide acceptance, thus making it part of the society’s culture. Same marriage advocacy argues that no one should be denied a chance to enjoy his or her sexual life with a person of his or her choice. In essence, consent is important in any form of sexual relationship, thus the need to respect people who have consented to staying together as a man and wife despite their sex.
Conclusion
Major changes have occurred in the social and legal realms as far as same-sex couples are concerned. There is a growth in the number of states that are currently agreeing to the legal rights and obligations of these couples. However, there are still limitations regarding the legal resolutions of conflicts affecting the same sex couples. The reality on the ground is that the legal changes have not yet affected the mechanisms for dealing with conflicts relating to this new phenomenon. Challenges are still evident in the efforts to come up with effective mechanisms for resolving conflicts, including mediation. Such is evident even considering the major conflicts that abound in such families and relationships. Thus, it is time to ensure that the new alterations in law are in line with changes in the legal and social mechanisms for navigating the complexity of conflicts between gay couples. The law must come with negotiation mechanisms bearing in mind the unique nature of the gay couples as opposed to heterosexual ones.
References
Aguirre, J. (2013). Habermas’ account of the role of religion in the public sphere: A response to Cristina Lafont’s critiques through an illustrative political debate about same-sex marriage. Philosophy & Social Criticism, 0191453713491264.
Cahn, D. D. (2013). Conflict in personal relationships. Routledge.
Fine, M. A., & Harvey, J. H. (2013). Handbook of divorce and relationship dissolution. Psychology Press.
Kennedy, B. S. (2012). Moving Away from Certainty: Using Mediation to Avoid Unpredictable Outcomes in Relocation Disputes Involving Joint Physical Custody. BCL Rev., 53, 265.
Oleske, J. M. (2015). The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages.
Roberts, M. M. (2014). Mediation in family disputes: principles of practice. Ashgate Publishing, Ltd.
Wahlert, L., & Fiester, A. (2012). Mediation and surrogate decision-making for LGBTQ families in the absence of an advance directive. Journal of bioethical inquiry, 9(3), 365-367.
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