Value of Mediation in Child Custody Disputes (Recent Research 1996-2001)
Ludwig.F. Lowenstein Ph.D
Southern England Psychological Services
Justice of the
Peace, Vol. 166, 2000, p 739-744
Introduction and Abstract
What follows will be set out into the following categories:
- Diagnosing child custody disputes.
- Policies and strategies dealing with child custody disputes.
- Favourable outcomes through mediation.
- Mediation in cases of domestic violence.
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
A. Diagnosing Child Custody Disputes
Psychological 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published and unpublished research on the instruments.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
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 Disputes
Those 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
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,
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 Mediation
Reference 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
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
D. Mediation in Cases of Domestic Violence
There 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
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
Virtually 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
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
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- Help parents to value the contributions made by the other parent.
- Encourage parents always to put the children first.
- Avoid allowing one parent’s hostility and mistrust towards
the other parent to undermine the main required objective - to
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