Volume 10, Issue 2 - December 2011

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Charles Stoner, Sandra Perry, and Tanya Marcum
13 J.L. & Fam. Stud. 151 (2011)

Around the same time that states began to move away from fault-based divorce towards no-fault dissolution of marriage, courts and legislatures began to embrace mediation as a way for couples to decide child custody and visitation issues. This marked a shift towards what is known as the “best interest of the child standard,” but sparked criticism that mediation was just another way to force the parties into a settlement, especially since some states mandated mediation of child custody and visitation issues.

Historically, children were considered the property of their father. However, following the British Custody of Infants Act of 1839, British courts required courts to award custody of children under age 7 to their mothers and to provide mothers with visitation rights for children 7 years and older. This impacted United States law, and became known as the “tender-years doctrine.” The doctrine presumed that mothers were more capable of caring for infants and children of a “tender age.” It wasn’t until the 1960′s that this presumption was criticized as being biased towards women, and as such, the legislature passed the Uniform Marriage and Divorce Act. This act adopted the “best interests of the child” standard which is still the main test used when determining child custody issues today. However, a question arises as to whether an adversarial process is truly in the best interest of the child. Due to this concern, many jurisdictions have begun using mediation instead of an adversarial process.

Mandated mediation in child custody and visitation cases did not really come into being until 1980 in California. The stated purpose of the California law was to assure the child’s close and continuing relationship with parents post-divorce. Three main criticisms of the law existed: (1) the law did not specifically consider the best interest of the child; (2) the law did not provide judicial protection for women who suffered an imbalance of power in the relationship; and (3) the law did not provide exceptions in cases of spousal abuse. Only 6 states have adopted mandated mediation, but over 30 have provided for some form of mediation in child custody/visitation cases.

The perceived benefits of mediation in family court range from lower costs to parties and courts, reduced docket congestion, increased communication and conflict resolution stills, and increased compliance with court orders. Of course, criticisms of mediation in child custody and visitation cases exist, one concern being that women may be taken advantage of if there is an imbalance of power in the relationship. However, mediation has also been praised as being more fair and effective than litigation in child custody disputes.

Mandatory mediation laws in child custody/visitation in Illinois have been dubbed the “900 series.” The purpose of the 900 series rules is to expedite cases, focus on the best interest of the child, and protect rights of all parties to the proceeding. The 900 series laws gives courts discretion to excuse cases from mediation and truly focus on the best interest of the child; thus, the concerns present in the California mandatory mediation law are not present here. Each judicial circuit in Illinois also requires mandatory training for mediators and also imposes other requirements on mediators such as obtaining a law degree or mater’s or higher degree in a social science field that focuses on family and marriage relationships.

The article then discusses the study conducted by the author. The subjects were mediators chosen from a circuit in Illinois; the circuit had been using mandatory mediation since January 1, 2007. The mediator-subjects in the study drew their impressions from their personal mediation experiences. There were 3 distinct groups of mediators chosen: attorney-mediators, counselor-mediators, and judge-mediators. The judge-mediators were retired judges who were “grandfathered” into the mediator system and were not required to participate in the mediation training.

The study was conducted using what is known as “grounded theory.” Specifically, the 15 mediators chosen were interviewed, the interviews were taped, and the researchers then carefully studied the interviews in an attempt to discover the critical approaches or theories the mediators used. Each interview was studied using a line-by-line approach, and were “coded” until the researchers met to reach agreement. This involved a process of sitting together for hours and poring over each interview. External data was also used to confirm or help assure confidence in the subjects’ responses and perspectives.

The results of the studies revealed important distinctions across the 3 types of mediators. In general, attorney-mediators and judge-mediators approached mediation with the primary goal of reducing the adversarial attitude between parents, resolving the legal issues, and expediting the court processes. Counsel-mediators, however, also focused on proving parents with interpersonal and relationship skills which would contribute to immediate as well as long-term impacts. Despite these distinctions, most every mediator agreed that the court system was not the best place for children whose parents are in the process of divorcing. The analysis of the interviews revealed 5 specific mediation impact strategies.

First, successful resolution through mediation serves to streamline and expedite use of court time. The mediator respondents acknowledged that contested custody cases can stretch out for long periods of time and can create a “lot of heartache” and felt that the very presence of mandated mediation might streamline the process by incentivizing parties towards more immediate action. The respondents also noted that mediation may weed out cases that do need to be tried so that they may be tried faster. Mandated or partially mandate mediation may also reduce the level of acrimony experienced in court and encourage “emotional purging.”

Second, respondents noted that mediation could have longer-term or extended court impact in the sense that well-handled mediation processes could foster skills and attitudes which would enhance parents’ ability to resolve future differences on their own. The authors note that this outcome is based on the assumption that improving attitudes and skills are important goals in addition to reaching closure, which is a contestable assumption.

Third, mediation has a more positive impact on children than what would result if the court process progressed without mediation. Respondents felt that mediation allowed parents to jointly reach better overall decisions for their children than those that would be court-imposed, and that the court system was “no place” for children.

Fourth, mediation had positive parental impact in several ways. Mediation enhanced parental empowerment due to the integral and involved role parents play in the process, which led to parents being generally more pleased with mediation. It also helped the parties to conserve “parental resources” because they knew that if mediation was unsuccessful, they would have to return to court for an expensive and painful process. Mediation improved parental interaction in a problem-focused setting where parents were made to feel safe. Also, mediation helps teach parents fundamental skills for relating to one another and helps to develop interactive and negotiating skills that will help parents down the road. In addition, one counselor-mediator felt that it helped people “lead better lives.” The authors note that this goal is not without controversy, as this may exceed the intent and logical perspective of mediation. The authors also note that this may be a greater concern with counselor-mediators than with other mediators, as counselor-mediators must struggle to remain focused on specific custody and visitation issues and avoid tendencies to delve into deeper counseling issues.

Fifth, a number of mediators noted a strong bias towards joint parenting and felt that mediation encouraged that.

The authors reached 5 specific sets of conclusions and related impacts from the study. First, all mediator respondents expressed positive impressions of the mediation process and viewed mediation as a useful adjunct to the court’s processes and procedures. Second, it led the authors to a conclusion regarding how success is measured in mediation—mainly, that while a full agreement on custody and visitation is ideal, a partial agreement also represents a degree of success. Third, the authors concluded that mediation is built on an assumption of participating, and since each mediator established mechanism to enhance the foundations needed for maximum parental participation, it helped to create a sense of parental control and freedom. Fourth, the authors concluded that successful mediators must practice a “melding of skills.” In other words, successful mediators must understand the demands of each situation and be sure his or her behavioral approach is directed by the situation and not by personal comfort or preference. Fifth, it appears that attorney preferences may trump parental needs when mediator selection was addressed. The attorney-mediators believed that an understanding of the court process would provide attorney-mediators and judge-mediators with advantages that were not possible with court mediators. While the impact of this conclusion runs counter to that of conclusion four, the authors did not feel this discrepancy to be especially problematic.

In conclusion, the authors noted that all mediator respondents emphasized a triad of interests that were important considerations when examining the purpose and outcomes of mediation: child, court, and parental impacts. Noting that each mediator’s underlying theoretical approach to mediation may affect which interest is “most important,” the authors conclude that the greatest impact and promise of mediation comes when “all elements of the triad can gain some level of recognition.”

The full article is available here.
*Summary by Megan Fulcher, Moritz class of 2012

Posted in: Volume 10, Issue 2

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