Family Court ADR: Decades of Cultivating Innovation

Vol. 20 No. 1

By

Referring family disputes to mediation and other ADR processes – especially matters concerning children – may be the most intuitive use of ADR. Most of us would agree that parents, not judges, are generally best equipped to make decisions about their children. Moreover, the benefits of a process with the capacity to foster communication and model collaborative problem-solving seem evident when there is a future long-term parenting relationship. Thus it should come as no surprise that family courts have long been among the earliest court adopters of dispute resolution programs – most often mediation. 

Family ADR may seem ubiquitous today, but its prevalence is the result of decades of innovation and evolving programs and processes designed to keep pace with the ever-changing capacity of the justice system while meeting the needs of separating and divorcing parents. These innovations have often paved the way for other applications in court ADR.[1] (See the Press and Schepard article in this issue, page 9.) This article provides a brief overview of the programmatic roots of family ADR in the courts, how these programs have borne fruit, and what the ADR field ought to know from this story.

Early Roots

Many family court ADR programs took root in family conciliation or counseling service (FCS) agencies first established in California in 1939. FCS agencies throughout the United States are typically court-connected and have historically provided family-related services, such as short-term counseling to help couples reconcile, as well as child custody evaluations on behalf of the court for those who could not stay together. Over the years, family court ADR processes largely grew out of these counseling and evaluation services. There are myriad models of custody evaluation in both the public and private sector, ranging from a brief, focused process that assesses specific issues (e.g., family violence or chemical dependency) for the court to more comprehensive processes that may involve multiple interviews, observations of parent-child interaction, and psychological testing. Evaluations typically result in a written report to the court and are frequently used in settlement negotiations.

In 1969, California Gov. Ronald Reagan signed the first no-fault divorce statute. This coincided with other societal changes that led to a substantial increase in the divorce rate. Perhaps most important, the feminist movement took hold, and an increasing number of women joined the workforce – whether by choice or out of economic necessity – and men devoted more time to child-rearing. Family courts thus generally (but gradually, over many years) moved from a default of the tender years doctrine and maternal sole custody – typically resulting in children visiting their fathers on alternate weekends – toward a greater sharing of parenting time and responsibilities. To address changes in the needs of clientele in the early 1970s, FCS agencies adapted. According to Jay Folberg, an early family mediator and proponent of mediation, “That was when the meaning of ‘conciliation’ began to change from staying together to peacefully separating with an eye toward the best interests of the children.”[2] The seeds of self-determination and confidentiality, generally considered central to mediation, were already planted in the counseling services provided by FCS agencies. Then, in 1973, the first court-connected family mediation program was piloted in the Los Angeles Conciliation Court. 

In 1974, the first private mediation center was established in Atlanta by O.J. Coogler, a lawyer and counselor who, spurred by his own difficult divorce, established the Family Mediation Association in 1975. Coogler was harshly criticized by members of the legal community, and some bar associations declared mediation by non-lawyers as the unauthorized practice of law and attempted to discourage lawyers from serving as mediators through the threat of ethical sanctions.[3] Nonetheless, interest in mediation grew rapidly in both the private and public sectors. While custody evaluation continued to play a role in the divorce process, it generally took a back seat to mediation.

Branches and Offshoots

In 1981, California established mediation of custody and visitation throughout the state by enacting the first state statute to mandate parents’ participation in mediation. This led to significant discussion about the appropriateness of requiring litigants to mediate. Nonetheless, mediation grew, in the form of both voluntary and mandatory programs, across the United States in the 1980s. The National Center for State Courts estimated that as of the early 1990s, programs existed in more than 200 courts in nearly 40 states.  

As mediation developed in family courts (and elsewhere), the early rumblings of what has become a long-standing conversation about mediation styles began to emerge. California’s statute permitted a local option for what was known as “recommending mediation,” a process in which the mediator makes recommendations to the court if parties do not reach agreement. The pages of Conciliation Courts Review (now Family Court Review) were replete with articles about self-determination and evaluative and recommending mediation, examining fundamental assumptions about the role of the mediator and the mediation process. This tension – certainly not limited to California or family mediation – has long existed at the heart of many FCS programs. The continuing effort to reap the potential benefits of approaches that value both self-determination and expert guidance has contributed to the development of a rich array of innovative hybrid processes in family ADR today.

One early example of innovation in family court ADR can be found in integrating court-based mediation and custody evaluation. Court-based custody evaluations had traditionally been evaluative or investigative processes, but beginning in the 1980s, some FCS agencies changed their evaluation process. In Connecticut, for example, after information-gathering and assessment (but prior to a report and recommendations to the court) evaluators systematically shared forthcoming recommendations with parties and lawyers and then facilitated a settlement conference. In another program, Hennepin County (Minneapolis) Family Court Services, parties who did not reach mediated agreements were offered (after mediation ended) the opportunity for their mediator to conduct an evaluation. These hybrid processes, while clearly different from each other, both attempted to integrate the facilitative and evaluative role of the neutral in an effort to reach resolution.   

Critics of hybrid processes believe that they potentially undermine the primary foci of both processes. Mediators who might ultimately make a recommendation or conduct an evaluation may struggle to simultaneously help parties engage in interest-based negotiations while also evaluating the parties’ strengths and weaknesses and considering a recommendation. Further, parties in a mediation that has the potential to become an evaluation may share confidential information with a mediator that they may not want to share with an evaluator. Evaluators conducting evaluations with an eye toward settlement may struggle to leave behind their assessments when attempting to facilitate settlements based on their evaluations. Moreover, parties to post-evaluation settlement discussions facilitated by evaluators may feel compelled to acquiesce to the evaluator’s recommendation. 

Nonetheless, a hybrid approach allows the parties and neutral to build on any progress or information developed in one process and avoid spending time and energy starting over with a new professional in the other process. Perhaps more important, the hybrid processes can, at times, be more flexible in meeting the specific needs of the parties. Indeed, courts that are concerned with the cost of ADR and with serving the needs of families may find these hybrid approaches efficient and effective in particular cases.

Pruning and Fertilizing as Needs Change

In the 1990s, as courts continued to establish mediation programs, the evolution of services continued as FCS agencies confronted an increasing array of challenges. These included budget and staffing cuts, increasing caseloads, non-English speaking clientele, unrepresented litigants, and an increasing number of parents who had never been married to each other. Thus many courts developed programs for separating and divorcing parties even when no specific legal issue was before the court. To help guide self-represented litigants through the court and dispute resolution process, many courts established self-help centers as well as divorce education programs, the number of which quadrupled in the United States between 1994 and 1998 (See the Macfarlane article in this issue, page 14). These early-intervention education programs vary but typically include information about children’s needs and/or skill-based curricula to provide parents with information, tools, and techniques for co- or parallel-parenting and for mitigating inter-parental conflict. A small number of evidence-based educational programs have demonstrated the capacity to prevent negative consequences of separation and divorce on children such as substance abuse, poor grades, and mental disorders.[4]

The 1990s also saw an increasing number of cases involving issues such as high conflict, domestic violence (See the Olson article in this issue, page 25), and chemical dependency, which created challenges for agencies where mediation was the default, and sometimes the only available, process. While space does not permit a full discussion of the impact of these issues on family dispute resolution, many programs continue to move away from “mediation as usual” to help manage these challenging cases. It is not clear whether these challenges were new to FCS agencies in the 1990s or social science research and political advocacy created a greater awareness.[5] What is clear, however, is that families coming to court presented an increasingly diverse set of needs when it came to a dispute resolution process.

Family ADR Innovation: Bearing Fruit

As FCS agencies and private practitioners worked toward addressing these challenges, a variety of new processes emerged under the family ADR umbrella, many of which sought to find just the right blend of facilitative and directive or evaluative components. Some developed in the courts and were adapted by private practitioners; some emerged from social science research; and some were developed in private practices and adapted in courts. While an exhaustive list of family ADR processes is not possible, the box on the previous page contains some examples and brief descriptions.

Funding Drought

At a time when families appear to need more and more, governments are providing courts with less and less to do their work. For example, in recent years Los Angeles County Family Court Services reduced its staff by one-third and eliminated services, including comprehensive custody evaluation and a group intervention for high-conflict parents. Similar cuts are taking place in many courts across the country. While the innovations described on the facing page helped improve services for families, there is a limit to how much courts can innovate their way out of budget trouble. Even when spurred by adversity, at some point courts and FCS agencies will not be able to provide sufficient services if the budget ax continues to fall. Although many agencies are not under this level of stress, too many family court services are.

Adaptations to Climate Change

By the beginning of this century, innovation in court ADR was flourishing. Nearly half the US states allowed mandatory mediation in parenting time disputes, based on local court rules or the discretion of judges, while 13 states had family mediation laws. This institutionalization created an expectation and in many cases a reliance on the availability of mediation (but not necessarily other family ADR) among parties, the bar, and the bench in many jurisdictions.  However, at the same time expectations grew, the capacity of many courts to provide services diminished due to many of the challenges noted above.  Early on, court-connected mediation was premised on adequate program resources and parties with access to legal representation and other appropriate support services. Cases involving domestic violence, high- conflict, chemical dependency, or child welfare issues were the exception rather than the rule. Today, many programs have re-evaluated service delivery options to adapt to the influx of challenging cases combined with, at best, stagnant (or diminishing) resources. 

Courts also have expanded the use of screening and differentiated case management (or triage) in family court settings. Screening in court-connected mediation is not new, having been developed extensively over the last two decades in large part in response to concerns expressed by advocates for victims of domestic violence about mediation in such cases. More recently, however, FCS agencies have begun exploring triaging services, sometimes beginning with a screening process that attempts to match the parties to the family dispute resolution process that is most appropriate at the outset, rather than referring all parties to mediation and then, failing a mediated agreement, to subsequent processes (e.g., hearings, custody evaluation, or settlement conferences). 

The use of triage in family cases has generated debate. Proponents argue that triage benefits families and is an effective and efficient use of court resources. Critics contend that no one can predict who will succeed in mediation and that triage is a hurdle rather than a help and potentially undermines mediation programs and resources.[6] 

Measuring the Yield

As new processes are developed and implemented, they must be assessed, especially with such limited resources. Are children faring better because of the processes? Do parents feel they have been treated fairly? Are resources of the courts and the families being used efficiently? We do not have the answers, and society, courts, and parents will be operating in ignorance if these questions are not addressed through comprehensive evaluation. In an era of limited funds for direct provision of services, conducting reliable evaluations of court ADR programs is more of a challenge – but more important than ever.

Future Seeds of Change

Looking forward, family court ADR will continue to need to evolve to meet the challenges of social and economic change. We can anticipate that same-sex marriage, globalization, evolving technology, and an increasingly mobile society will provide new challenges and spark further innovations.

Family court services agencies have shown themselves to be uniquely able to adapt, in large part by keeping a close eye on the needs of the parents and children who use the system. As we all work to meet the needs of those who turn to the courts to address their conflicts, other areas of the judicial system should continue to look to family court ADR for inspiration.

Additional Resources

Examples of Family ADR Innovations

These processes and others – including adaptations of mediation for domestic violence or child welfare disputes – are highly nuanced and many overlap substantially. Nonetheless, these adaptations and nuances may be informative as the broader ADR field faces similar issues.

Brief Focused Assessment (BFA): an abbreviated custody evaluation typically focusing on specific, targeted questions. The BFA may be used when a comprehensive evaluation (typically more costly and divisive) is not required. Many courts have implemented BFAs in a variety of formats. BFAs are also used in private-sector evaluations.

Child Inclusive Mediation: an empirically based process in which the child is interviewed by a child specialist who then participates in mediation with the parents, bringing the child’s voice into the room. Child Inclusive Mediation was first developed in Australia by Dr. Jennifer McIntosh and has been replicated with modifications in the United States.

Conflict Resolution Conference: a hybrid process where the neutral meets with the parties over multiple sessions, conducts limited independent information-gathering, and attempts to facilitate settlement in a directive fashion. The Connecticut Court Support Services Division offers conflict resolution conferences. This process evolved in part from Connecticut’s settlement-based evaluation process noted earlier in this article.

Early Neutral Evaluation: a process in which co-evaluators hear from the parties without corroborating the information or conducting further investigation. The evaluators then share with the parties what they would report based on the information given. Parties then conduct settlement discussions or continue to a full evaluation. Hennepin County FCS first developed Early Neutral Evaluation for family cases in addition to its mediation and evaluation processes noted in the article.

Impasse-Directed Mediation: a process that combines aspects of counseling, negotiation coaching, and mediation for high-conflict parents. Janet Johnston and Linda Campbell pioneered this resource-intensive and ground-breaking approach in the 1980s in the book Impasses of Divorce (Free Press, 1988). It was one of the early, if not the first, hybrid processes designed specifically for high-conflict, highly litigious families and was adapted for use in the most challenging cases in both court-connected agencies and the private sector.

 

Susan M. Yates is Executive Director of Resolution Systems Institute, enhancing court ADR through system design, program assessment, and CourtADR.org, RSI’s online resource center. She has been active in the Dispute Resolution Section, including two terms on the Section Council and working on the 2005 revision of the Model Standards of Conduct for Mediators. She has been a mediator since 1983. She can be reached at yates@aboutrsi.org.

Peter Salem is Executive Director of the Association of Family and Conciliation Courts. He has led numerous inter-organizational collaborative initiatives to reform family court and dispute resolution processes. Mr. Salem was awarded a William T. Grant Foundation Distinguished Fellowship to help improve the use of social science research in family court policy and practice, and he taught mediation at Marquette Law School. He can be reached at psalem@afccnet.org.

[1] Nancy Welsh, You’ve Got Your Mother’s Laugh: What Bankruptcy Mediation Can Learn from the Her/History of Divorce and Child Custody Mediation, 17 ABI L. Rev. 427, 454-58 (2009).

[2] Peter Salem, Reflections of Leadership: Fifty Years of the Association of Family and Conciliation Courts, 51 Fam. Ct. Rev. 10, 12 (2013).

[3] Ann L. Milne, Jay Folberg & Peter Salem, The Evolution of Divorce and Family Mediation: An Overview, in Divorce and Family Mediation: Models, Techniques and Applications 5 (Jay Folberg, Ann L. Milne & Peter Salem eds., 2004).

[4] Peter Salem, Irwin Sandler & Sharlene Wolchik, Taking Stock of Parent Education in the Family Courts: Envisioning a Public Health Approach, 51 Fam. Ct. Rev. 131 (2013).

[5] Donald Saposnek, Commentary: The Future of the History of Family Mediation Research, 22 Conflict Resol. Q. 37 (2004); Steve Baron, A Response to Salem: Common Sense, 48 Fam. Ct. Rev. 195 (2010).

[6] Peter Salem, The Emergence of Triage in Family Court Services: The Beginning of the End for Mandatory Mediation? 47 Fam. Ct. Rev. 371 (2009); Hugh McIsaac, A Response to Peter Salem’s Article The Emergence of Triage in Family Court Services: Beginning of the End for Mandatory Mediation. 48 Fam. Ct. Rev. 190 (2010).

Examples of Family ADR Innovations

These processes and others – including adaptations of mediation for domestic violence or child welfare disputes – are highly nuanced and many overlap substantially. Nonetheless, these adaptations and nuances may be informative as the broader ADR field faces similar issues.

Brief Focused Assessment (BFA): an abbreviated custody evaluation typically focusing on specific, targeted questions. The BFA may be used when a comprehensive evaluation (typically more costly and divisive) is not required. Many courts have implemented BFAs in a variety of formats. BFAs are also used in private-sector evaluations.

Child Inclusive Mediation: an empirically based process in which the child is interviewed by a child specialist who then participates in mediation with the parents, bringing the child’s voice into the room. Child Inclusive Mediation was first developed in Australia by Dr. Jennifer McIntosh and has been replicated with modifications in the United States.

Conflict Resolution Conference: a hybrid process where the neutral meets with the parties over multiple sessions, conducts limited independent information-gathering, and attempts to facilitate settlement in a directive fashion. The Connecticut Court Support Services Division offers conflict resolution conferences. This process evolved in part from Connecticut’s settlement-based evaluation process noted earlier in this article.

Early Neutral Evaluation: a process in which co-evaluators hear from the parties without corroborating the information or conducting further investigation. The evaluators then share with the parties what they would report based on the information given. Parties then conduct settlement discussions or continue to a full evaluation. Hennepin County FCS first developed Early Neutral Evaluation for family cases in addition to its mediation and evaluation processes noted in the article.

Impasse-Directed Mediation: a process that combines aspects of counseling, negotiation coaching, and mediation for high-conflict parents. Janet Johnston and Linda Campbell pioneered this resource-intensive and ground-breaking approach in the 1980s in the book Impasses of Divorce (Free Press, 1988). It was one of the early, if not the first, hybrid processes designed specifically for high-conflict, highly litigious families and was adapted for use in the most challenging cases in both court-connected agencies and the private sector.

Parenting Coordination: a process that combines education, mediation, and limited decision-making by a parenting coordinator. It is offered primarily in the private sector but also in some courts, including Florida’s 11th Judicial Circuit. Parenting Coordination is typically used in post-decree matters, but it has also been implemented in a wide variety of formats.

Examples of Family ADR Innovations

These processes and others – including adaptations of mediation for domestic violence or child welfare disputes – are highly nuanced and many overlap substantially. Nonetheless, these adaptations and nuances may be informative as the broader ADR field faces similar issues.

Brief Focused Assessment (BFA): an abbreviated custody evaluation typically focusing on specific, targeted questions. The BFA may be used when a comprehensive evaluation (typically more costly and divisive) is not required. Many courts have implemented BFAs in a variety of formats. BFAs are also used in private-sector evaluations.

Child Inclusive Mediation: an empirically based process in which the child is interviewed by a child specialist who then participates in mediation with the parents, bringing the child’s voice into the room. Child Inclusive Mediation was first developed in Australia by Dr. Jennifer McIntosh and has been replicated with modifications in the United States.

Conflict Resolution Conference: a hybrid process where the neutral meets with the parties over multiple sessions, conducts limited independent information-gathering, and attempts to facilitate settlement in a directive fashion. The Connecticut Court Support Services Division offers conflict resolution conferences. This process evolved in part from Connecticut’s settlement-based evaluation process noted earlier in this article.

Early Neutral Evaluation: a process in which co-evaluators hear from the parties without corroborating the information or conducting further investigation. The evaluators then share with the parties what they would report based on the information given. Parties then conduct settlement discussions or continue to a full evaluation. Hennepin County FCS first developed Early Neutral Evaluation for family cases in addition to its mediation and evaluation processes noted in the article.

Impasse-Directed Mediation: a process that combines aspects of counseling, negotiation coaching, and mediation for high-conflict parents. Janet Johnston and Linda Campbell pioneered this resource-intensive and ground-breaking approach in the 1980s in the book Impasses of Divorce (Free Press, 1988). It was one of the early, if not the first, hybrid processes designed specifically for high-conflict, highly litigious families and was adapted for use in the most challenging cases in both court-connected agencies and the private sector.

Parenting Coordination: a process that combines education, mediation, and limited decision-making by a parenting coordinator. It is offered primarily in the private sector but also in some courts, including Florida’s 11th Judicial Circuit. Parenting Coordination is typically used in post-decree matters, but it has also been implemented in a wide variety of formats.

Advertisement

ABOUT DISPUTE RESOLUTION MAGAZINE

 

DISPUTE RESOLUTION MAGAZINE is published quarterly (4 times a year) by the American Bar Association Section of Dispute Resolution. Dispute Resolution Magazine provides timely, insightful and resourceful information regarding the latest developments, news and trends in the growing field of dispute resolution throughout the world and features internationally-known scholars and practitioners as authors.

 

Dispute Resolution Magazine Editorial Board


Chairs
Joseph B. Stulberg
The Ohio State University Moritz College of Law
Columbus, OH

 

Nancy A. Welsh
Penn State University, Dickinson School of Law
Carlisle and University Park, PA

 

Chair Emeritus
Frank Sander
Cambridge, MA

 

Members
James Coben
Hamline University School of Law
St. Paul, MN

 

Geetha Ravindra

International Monetary Fund

Glen Allen, VA

 

Michael Lewis
JAMS
Washington, DC

 

Bennett G. Picker
Stradley Ronon
Philadelphia, PA

 

Donna Stienstra
Federal Judicial Center
Washington, DC

 

Zena Zumeta
Mediation Training & Consultation Institute
Ann Arbor, MI

 

Editor
Gina Viola Brown

 

Associate Editor
Louisa Williams

 

The Editorial Board welcomes the submission of article concepts as well as draft articles relevant to the field of dispute resolution. The Editorial Board reviews all submissions and makes final decisions as to the publication of articles in Dispute Resolution Magazine. Author guidelines for submissions are available below. 

 

For information on advertising in Dispute Resolution Magazine, contact the ABA Advertising Business Manager at 312-988-6114.

 

Subscription to Dispute Resolution Magazine is included in the membership dues of the Section of Dispute Resolution. Nonmembers of the Dispute Resolution Section may subscribe to the Magazine for $30.00 per year. Back issues may be obtained for $8.00 per copy. Contact ABA Service Center at service@americanbar.org.

 

For more information about becoming a member, see the Member Center.

 

Section Leadership

Back to Entity's Publications Page

Author Guidelines