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The Value of Mediation in Child Custody Disputes (Recent Research 1996-2001)Ludwig.F. Lowenstein Ph.D
Justice of the Peace, Vol. 166, 2000, p 739-744Introduction and AbstractWhat follows will be set out into the following categories:
Virtually all research indicates that the role of mediation should be increased in custodial disputes between parents following divorce or separation. There is considerable evidence now that mediation is superior to litigation. Despite this however, litigation and adversarial approaches continue in connection with disputes between parents over their children. Not all cases lend themselves to shared parenting type decisions. Such shared parenting is certainly the ideal for which to aim, whenever possible. The crux of the matter appears to be, seeking to have parents view their conflict as secondary to their care the and future development of their children. This is where mediation could play an important role with the support of the courts and the litigation process. It is the view of the author that any parent who fails to co-operate with the aims of the mediator in putting children first in any dispute should be forced by the court to co-operate or else lose a degree of custody over children. A. Diagnosing Child Custody DisputesPsychological diagnostic tools are rarely used in the diagnosis of parents and their children who are involved in child custody disputes. Heinze & Grisso (1996) reviewed the following instruments of parenting capacity that are currently used in child custody evaluations. These are: The Ackerman-Schoendorf Scales for Parent Evaluation of Custody, the Bricklin Perceptual Scales and Perception of Relationships Test, the Child Abuse Potential Inventory (CAPI), the Parent-Child Relationship Inventory (PCRI), and the Parenting Stress Index (PSI). These instruments were reviewed by obtaining the test manual and published and unpublished research on the instruments. Each measure was described, as well as research on the measures, norms, reliability, validity and generalisability. The measures were discussed with regards to their approach in processing parental effectiveness and principles of test construction. The results indicated that the CAPI, PCRI, and PSI were all useful measures that could be utilised in child custody cases and in divorce mediations. Attempts were made to develop standardised tests for mediation assessment by others including Mathis & Yingling (1998a). The objective of such tests was to measure competent, discordant, disoriented, and chaotic parenting. One criteria of this assessment was to select good candidates for mediation as opposed to those who were unlikely to benefit from it. Emery, (1999) suggested a way to help mental health professionals carry out child custody evaluations, was to change the system for deciding custody in divorce, by promoting mediation procedures and adopting a new legal standard guiding child custody determinations. The views of children need always to be considered when making decisions regarding parenting. This is emphasised by Ramirez et al (1999). This Spanish study considered children’s responses and beliefs towards parental separation and divorce. The parents were undergoing some form of mediation during separation and the divorce process. The results were evaluated according to age and sex, and also sex of the custodial parent, judicial or family mediation divorce/separation process, time since the divorce/separation, parental visitation regularity, and the children were questioned as to their perception of the source of parental conflict. Social policies on easing interparental conflict were discussed by Emery (2001). The social policies explicitly designed to reduce interpersonal conflict were often limited to 1) divorce especially child custody mediation; 2) legal interventions in spousal violence; and 3) various educational programmes particularly pre-marital counselling and educational programmes for divorcing parents. Emery suggested that whilst these social policies might only have a limited effect on reducing interparental conflict and increasing co-operation, the policy might produce substantial effects over time as one of many contributors to shaping cultural views of conflict and the co-parenting relationship. Finally, Ackerman (2001) thought a step-by-step guidance approach of value, through a process of interviewing, performing behavioural observations, and collecting collateral information. The author used a wide variety of psychological tests designed specifically for evaluation parental fitness for custody. These tests provided guidelines for evaluating the behaviour of parents and presented practical steps to take in determining whether alleged abuse between parents or parents and children actually occurred. B. Policies and Strategies Dealing with Custody DisputesThose who carry out the procedures of mediation with divorced couples or separated couples must learn to assist them through mediation. Mediators should develop a strategy for dealing with children changing from a nuclear family to a bi-nuclear family. Any mediation technique must propose a method for developing a common basis of discussion between the two spouses. Such parents are often in conflict and find it difficult to plan their parenthood jointly in terms of times, roles and content (Cohen et al, 1996). One study concerned itself with mediation when one of the parents was gay. Here Campbell (1996) emphasised the importance of the mediator to interpret matters for both children and the parents. In the case of non-married couples Reisner (1997) reviewed the research and found that non-married parents had a higher no-show rate for purposes of mediation than that of divorcing parents. However, when non-married parents did appear for court ordered mediation, they reached agreements at the same rate as divorcing parents. The author found surprisingly that non-married parents with a history of violence were more likely to appear for appointments and reach agreements. A Canadian study by Carruthers (1997) discussed the first legislatively based child protection mediation programme in Canada which was implemented in the Province of Nova Scotia in 1993. This programme had been criticised for not saving children from neglect and abuse. In Nova Scotia, there is however, a growing interest and implementation of mediation programmes which is now passing throughout Canada. In a Norwegian study by Ekeland & Myklebust (1997) mandatory divorce mediation was discussed involving 456 male and female Norwegian adults who were either married with children aged 16 years and under, or unmarried adults with custody disagreements. These subjects were surveyed concerning conflicts in, and characteristics of, divorce proceedings and custody disagreements immediately before and after mediation and one year later. The success of mediation in solving conflicts was measured. The influence of custody decisions such as joint custody and the amount of visitation on amount and type of conflict was examined. The effect of these factors on the children’s mental health was also assessed. The process of mediation led to considerable success. Enforcing mediation however, can be a problematic matter as found by Kandel (1998). To avoid this it was found useful to have an affirmative obligation for mediation requested by the court and mediators to carry out child custody procedures, under a judicial sanction. A nation-wide survey of 253 practitioner-level mediators was conducted to determine their views on the effectiveness of divorce, education programmes for parents on both the process and the outcome of divorce mediation. Arbuthnot & Kramer (1998) found that three-quarters of the respondents reported that divorce programmes were available in their communities. These programmes were run by the local court or by an independent non-profit organisation, and over half were mandatory. Over half the mediators reported that they covered formal divorce education with clients at least some times. The chief impact on the mediation process and outcome included greater focus on the children, more co-operation, and better communication skills between the parents. There should also be a minimum of custody and parenting plans and a trend towards less time required to reach agreement. Mediators believed that divorce education was appropriate for highly conflicted and power-imbalanced couples, but less so for couples involved in substance or spousal abuse. Just over two-thirds of mediators believed that divorce education should be made mandatory for all divorcing couples with children. Solicitor’s opinions concerning child custody mediation were reported by Lee et al (1998a, b). Psychologists who conducted divorce mediation or child custody assessments needed to understand the context of such professional practice and the views of other professions involved such as lawyers. In this study, family lawyers (n==161) completed a questionnaire about mediation and assessment of custody disputes, indicating positive attitudes toward mediation and recognition of its favourable effects on the family. Lawyers viewed assessment as a desirable alternative to litigation but did not associate it with enhanced family functioning. Lawyers strongly endorsed the need for abuse screening prior to mediation. A further favourable result of the value of mediation was reported by Kruk (1998), Lamb et al (1999), and Austin (2000). Another study emphasised the importance of kinship care especially with individuals of African background who are involved in resolution disputes (Wilhelmus, 1998). The emphasis by Wallerstein (1998) was that society has an important task in protecting the millions of children who have suffered from the father’s emotional and economic abandonment, often in favour of commitment to new children in subsequent marriages. Allegations of substance abuse and physical, emotional and sexual abuse by spouses are sometimes involved in custody disputes as noted by Pruett et al (2000). Here again court family service mediators are likely to play an important role to differentiate true from false allegations. There have been a number of books written for couples to guide them on how best to deal with divorce or separation. Kranitz (2000) provided some practical information in resolving issues that arise when people who have lived together decide to separate. It is unfortunate that there are still a considerable number of custody battle ‘burn-outs’, where parents give up their role as carers due to the difficulties involved in legal custody battles (Turkat, 2000). In order to prevent this another book which has had great influence in offering divorcing parents a way of avoiding custody battles is that of Stahl (2000). Many recent pieces of research emphasise the importance of increasing the non custodial parent’s access and visitation with their children (Keoughan et al, 2001; and Hyden, 2001). C. Favourable Outcomes Through MediationReference has already been made to the value of mediation by countries and states and local areas. The reviews of literature concerned with how children from divorced families adjust under different custodial arrangements is carried out by Twait and Luchow (1996). The level of interparental conflict present in the family before and after divorce appears to be a powerful mediating variable that affects children’s adaptation to different custodial situations. It was concluded that custodial decisions needed to be made on an individual basis, with no presumption that custody should be awarded to either the mother or the father. It was clear, that regardless of the decision regarding custody, the parents should be educated regarding the importance of avoiding overt hostility in establishing a workable co-parenting relationship. Problems with communication in divorce mediation were noted by Rudd (1996). Also noted was a participant’s argumentativeness, verbal aggression, and the need for compliance-gaining strategies during mediation. The long-term effects of divorce mediation and resolution were studied by Dillon & Emery (1996). They found that of the 25 parents who chose mediation and the 28 parents who chose litigation to resolve child custody disputes, the mediation parents reported better communication between themselves and their former partner concerning the children. Non-custodial parents assigned to mediation reported more frequent current contact with their children and greater involvement with decisions about them. Kelly (1996) discovered that after a decade of divorce mediation research which has focused on outcomes and settlements, as well as cost efficiency and client satisfaction, most studies reported mildly favourable to very positive results for the use of mediation. Kelly felt that research on the mediation process and mediator behaviours had received very limited attention and should be focused upon int he next decade of research to elevate the mediation field to a more sophisticated, effective level of practice. Considering such a result it is clear that mediation is still the least used area of expertise, the preference being for solicitors to deal with disputes on a litigation basis. The questioning by Beauregard et al (1998) of 161 family lawyers aged 25-59 years about mediation found there was a difference by gender and experience. Female attorneys held stronger views than did their male counterparts. There were few differences among the opinions of lawyers based on their years of experience or their own training in mediation. Compared to non-mediators, mediators rated the positive effect of mediation more highly. Mediators however, differed as to their intervention, some preferring complete intervention and others non intervention (Smoron, 1998). Whatever methods were used, however, mediation was found to be effective in changing parents’ views regarding adoption when there were crises between the partners (Heath, 1998), In the case of parental alienation syndrome Lowenstein (1998) discussed the steps involved in mediation before, or while legal action occurred. The courts intervened only to enforce a solution recommended by the mediator. This is to prevent often tragic, acrimonious human interactions between former partners. He also advanced the proposal that mediation played a much larger role in cases of parental alienation syndrome in Britain than was previously recognised. Fathers and sometimes mothers gave up the battle to have regular contact with their children because of the custodial parents’ intransigence and the court failing to act justly. Professionals such as qualified psychologists or psychiatrists should be able to offer a full course of mediation ideally before partners begin divorce proceedings or decisions regarding the placement of children with one party or the other are made. A 10-year study involving 16 cases provided evidence that the initial use of mediation might well be superior to the initial use of the adversarial system. Long-term and short-term satisfaction with mediation was strongly correlated according to Jones and Bodtker (1998). Returning to the earlier theme of parental alienation syndrome Vestal (1999) found that through mediation it was possible to detect this situation and remedial plans could be made to offset it and to restore the relationship of the non custodial partner with the children. Most importantly the need for medication was significantly reduced by relying on mediation more than is currently the situation as noted by Jones & Bodtker (1999). They hypothesised that mediated child custody cases would have high rates of agreement and agreement maintenance. They also found that disputants in mediated child custody cases were more satisfied than disputants in non-mediated child custody cases; and that mediated child custody cases would have lower incidents of relitigation or recidivism than non-mediated child custody cases. The results confirmed all hypotheses. Similar results were obtained by Hahn & Kleist (2000) in their study of a review of 10 years of divorce and custody mediation research. Alternative dispute resolution (ADR), similar to mediation, was analysed by Ezzel (2001). He concluded that this approach, favoured by Judges as well as attorneys in domestic relationship disputes was beneficial and should be used in all domestic relation cases aside from those involving disputed child custody. Perhaps most conclusive of all is a very recent study by Emery et al (2001) who carried out a long-term follow-up on families who had been randomly assigned to mediate or litigate their child custody dispute. In comparison with families who litigated custody, non-residential parents who mediated were more involved in multiple areas of their children’s lives. They also maintained more contact with their children, and had a greater influence in co-parenting 12 years after the resolution of their custody disputes. The increased involvement of non-residential parents who mediated did not lead to an associated increase in co-parenting conflict. Parents who mediated also made more changes in their children’s living arrangements over the years. For the most part, the changes apparently reflected increased co-operation and flexibility. Satisfaction declined for parents (especially fathers) in both groups over time, but fathers remained much more satisfied if they mediated rather than litigated custody. Few differences in satisfaction were found between mothers in the two groups. The 12-year follow-up data indicated that, even in the contested cases, mediation encouraged both parents to remain involved in their children’s lives after divorce without increasing co-parenting conflict. D. Mediation in Cases of Domestic ViolenceThere was some hesitancy to involve mediators when there has been definite violence between the adults. Mathis & Tanner (1998b) studied a sample of 149 couples who were assessed for spouse violence prior to family court mediation. Standard mediation was conducted without the participants or mediators knowing who was classified as violent or non-violent. The 65 couples who reached full agreement were grouped according to whether they had ever had a violent dispute during their relationship. Violent couples who reached agreement chose terms granting wives significantly more power in terms of control over custody and visitation than the non-violent couples chose. This suggested that wives of violent husbands were empowered sufficiently during standard mediation to negotiate somewhat more powerful safer terms for themselves than was necessary for wives of non-violent husbands. Nevertheless, 57% of all agreements between violent couples specified a form of shared custody which was felt to promote too much future contact between the violent ex-spouses. This tendency for violent spouses to choose shared custody was interpreted to mean that wives needed violence screening and special protective intervention measures to successfully negotiate, safer, more restrictive sole custody agreements. Mandatory mediation of custody in face of domestic violence was also studied by Maxwell (1999). He found that as a process that required a balance of power between participants, mediation was not an appropriate method to resolve domestic violence disputes, a phenomenon that reflected profound disparities in power between the perpetrator and the victim. There was however, the tendency now for alternative dispute resolution (ADR) to be increasingly used by social workers in cases of domestic violence (Imbrogno & Imbrogno, 2000). Finally, Sachs (2000) emphasised the importance of placing children in the custody of that parent who was more nurturing rather than the “superior litigator”. This would also protect the child more and prevent injuries to the child by an aggressive parent. SummaryVirtually all research currently and in the past emphasised the best form of post-divorce or separation strategy was “joint parenting”. When this was not possible it was always due to the conflict between parents relentlessly continuing. Parental hostility led to conflict between themselves, but also to serious psychological and behavioural consequences for the children, immediately and in years to come. Since the ideal of joint parenting prevents children suffering, one may well ask why do parents not acknowledge this and become better parents by developing harmony between one another? The answer is fairly obvious. Parents often refuse to acknowledge that joint parenting is in the best interest of their children because of their animosity towards one another. Such hostility feeds upon itself and creates a denial that a former parent has anything of value to contribute to the rearing of children. Such parents cannot have any positive communication with one another, cannot be flexible about arrangements on sharing strategies, and almost always favour the adversarial legal approach. They see no value in the process of mediation, since mediation seeks to resolve the entrenched and hostile position which one or both parents have adopted. Mediators work to promote co-operation for the benefit of children and the former partners. Mediators can often achieve little to help highly stressed and hostile parents unless the legal system via the courts backs their efforts towards harmonious shared parenting and punishes parents for failing to co-operate. With the help of the court, mediators can do much to resolve conflicts between former partners. The mediators major role is to get parents to be committed to working together harmoniously for the benefit of children. At present sole custody arrangements are often accepted by the courts because of the inability of parents to work together. This can never to be viewed as an ideal solution. Here one parent is forced to give in to the pressure or power of the other parent often with the backing of the court. This is based on the reluctance of most courts to insist that most parents must co-operate with the mediation process or suffer the consequences of losing the custody of the children. What Judge would be seen to imprison a mother for failing to co-operate with the father and his visitation rights or any other working arrangement via the mediator? The answer is obvious......few if any. Such decisions are hard to make and yet such decisions are sometimes necessary because they are fair and just. In most cases the threat of removing a child from the sole custody parent is sufficient in forcing co-operation. The law must always be fair and just. It must also sometimes arrive at decisions that may seem harsh, in order to achieve both fairness and justice. The mediators role is to:
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