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December 09, 2022 Feature

Black Families Overlooked, Misunderstood, and Underserved in the Family Courts

Jenae’ Anderson, Zenell Brown, and Viola King

Introduction

Racial justice is critical to the American justice system and the mission to advance justice for all. As stakeholders examine efforts to create fairness in the justice system, it is imperative that internal standards and practices are critically examined. Implicit bias and racial inequality must be addressed before true justice reform can take place for marginalized communities. Stakeholders must examine the implicit racial bias of the jurist who hears cases and renders rulings, the role of alternative dispute resolution in family law cases, and whether virtual hearings afford minority communities better access to justice. Judges sitting in courts specializing in family law require not only knowledge of the law but also an understanding of people, cultures, and how to support them with sensitivity. Scientific research has shown that implicit bias might affect the work of judges, referees, and magistrates. Studies show that even people consciously committed to equality may still hold unconscious stereotypes that influence their actions.1

The courts’ technological pivot during the COVID-19 pandemic has made access to justice available at our fingertips.2 Attorneys and parties can dial into hearings using a web-based conferencing platform like Zoom, arguably making participating in court proceedings easier.3 However, what happens when the parties face challenges such as lack of broadband access, lack of devices to access web-based conference platforms, or lack of computer knowledge to access hearings, among a host of other problems? Are web-based conference platforms the most effective way to achieve justice? The pros, cons, and possible solutions have been identified as they relate to using web-based conferencing platforms to access justice.4 While the research examines the challenges with conducting Zoom hearings, further analysis is needed of the disparity of challenges in Black communities. This writing explores those challenges, racial disparities in access, and the impact on Black people and access to family court.

Finally, mediation is effective in resolving custody and parenting time disputes. In fact, mediation is a way to preserve positive relationships and garner adherence to parenting time agreements, which leads to a better well-being for the children involved. However, access to affordable mediation services is limited in many states. Additionally, there are insufficient mediation trainings and materials on the history and dynamics of Black families and a lack of Black mediation professionals.5 The net result is a lack of adequate mediation opportunities for Black parents.

Each section of this article includes recommendations and models for justice stakeholders to examine internal practices that restrict or deny justice to Blacks in family courts and work toward possible solutions. The authors bring their experience as a Black family law attorney, jurist, and mediator along with their research to raise the issue and propose a path forward.6

I. Implicit Bias

Because implicit biases are automatic, they can influence or bias decisions and behaviors, both positively and negatively, without an individual’s awareness. This phenomenon leaves open the possibility that even those dedicated to the principles of a fair justice system may, at times, unknowingly make crucial decisions and act in ways that are unintentionally unfair.7

As public servants in the justice system, we observe and fight against the manifestations of systemic racism every day. Circumventing the impact of implicit bias requires intentional behavior on the part of the decision maker. “Combating implicit bias, much like combating any habit, involves ‘becoming aware of one’s implicit bias, being concerned about the consequences of the bias, and learning to replace the biased response with non-prejudiced responses—ones that more closely match the values people consciously believe that they hold.”8

Recognizing that implicit bias processes are “normal” provides “insight into how we might go about avoiding the pitfalls we face when some of our information processing functions outside of our awareness.”9 As pioneers in the quest for justice reform, we know the importance and the power of collaboration with federal, state, and local legal advocates; court administrations; healthcare providers; and clients and their families to better understand the systems and dynamics at play within each of our communities and each of our respective roles. In the spirit of advancing justice for all, we have an affirmative duty and responsibility to educate ourselves about the history and culture of the communities in which we serve.

State and local court administrators can take small steps to address implicit bias by implementing “research-based strategies that may help attenuate implicit bias or mitigate the influence of implicit bias on decisions and actions.”10

State and local court administrators can “[p]rovide education on implicit bias that includes judicial facilitators/presenters, examples of implicit bias across other professions, and exercises” to personalize training sessions.11 In addition, administrators can “[p]rovide routine diversity training that emphasizes multiculturalism and encourage court leaders to promote” the principle that all people are equal and deserve equal rights and opportunities.12

To further assist the bench with addressing implicit bias, administrators can develop guidelines or protocols “for decision makers to check and correct for implicit bias (e.g., taking the other person’s perspective, imagining the person is from a non-stigmatized social group, thinking of counter stereotypic thoughts in the presence of an individual from a minority social group).”13 This can allow the decision maker to “engage in more thoughtful, deliberative information processing” before rendering an opinion.14

Research has shown that fatigue, back-logged cases, threats to physical safety, and distracting circumstances can adversely affect judicial performance.15 Decision makers experiencing pressure or distractions “are more likely to apply stereotypes—recalling facts in ways biased by stereotypes and making more stereotypic judgments. . . .”16 To alleviate or decrease the amount of stress or pressure for decision makers, administrators can “[r]eview areas in which judges and other decision makers are likely to be over-burdened and consider options (e.g., reorganizing court calendars) for modifying procedures to provide more time for decision making.”17 Implementing these modifications can allow decision makers enough time “to thoroughly process case information [needed] to avoid relying on intuitive reasoning processes that can result in biased judgments.”18

To counter stereotypes and reduce environmental triggers related to implicit bias, administrators should identify “any signage, pamphlets, brochures, instructional manuals, background music, or any other verbal or visual communications in the court [that] may inadvertently activate implicit biases,” and remove them and replace them with non-stereotypic information.19 In addition, administrators should add counter stereotypic information representing “stigmatized social groups in valued, authoritative roles. . . .”20

Like courts in Massachusetts and New York, other court systems could request an independent commission to analyze administrative data from state agencies regarding racial disparities and submit a report of its findings as well as proposed strategies for improvement.21

“Courts exist to do justice, to guarantee liberty, to enhance social order, to resolve disputes, to maintain rule of law, to provide for equal protection, and to ensure due process of law.”22 One of the most quintessential purposes of courts’ existence is to ensure that “the equality of individuals and the government is reality rather than empty rhetoric.”23

The pandemic caused a disruption in the court systems around the world, affecting both courts and lawyers alike. While the pandemic forced businesses to close and people to shelter in place for varying times, judges and administrators around the globe were forced to transform their practices almost immediately. Courts were forced to look for ways for the public to access justice safely while simultaneously providing a forum for the resolution of legal disputes and doing individual justice in individual cases.24

The pandemic “further challenged traditional assumptions about fairness in criminal justice” and other social institutions and heightened racial inequities.25 Systemic change is needed to make equality under the law an enduring reality for all. Our greatest opportunity for achieving true justice is “when judges are aware of a need to monitor their own responses for the influence of implicit racial biases, and are motivated to suppress that bias. . . .”26

We must continue our efforts to provide equal justice for all those whom we serve. We have the capacity to modify and change our concepts of stigmatized individuals.

II. Access to Justice

The COVID-19 pandemic forced courts to shift from in-person proceedings to virtual proceedings using virtual platforms like Zoom, Microsoft Teams, YouTube, and Google platforms. The question that the courts must answer is whether or not this new modality has been a benefit to the community.

Access to the court has never been user friendly or convenient for the self-represented litigant. Prior to the COVID-19 pandemic, access to courts could only be achieved in three ways. The first way would be to hire a lawyer. While hiring a lawyer provides a layperson with legal expertise, they are costly. The federal Constitution generally only grants the right to a lawyer in criminal cases.27 There are a wide variety of cases in which a litigant does not have a right to counsel and may not have an option for a pro bono attorney. The second way to access the court system was to represent yourself, which may require a litigant to draft their own pleadings and take time off work to appear. The third way to access the court was to go, sit, and observe hearing(s), which may require a person to take time off work, use mass transit or drive to the court, pass through security, and then wait for a court to start just to observe a court proceeding. Unlike other government bodies, one could not simply turn to a public access channel or C-SPAN to observe because most proceedings were not televised. Thus, the birth of virtual court seems to be the answer to give litigants, especially those who are self-represented, improved access to the court.

Family courts see significant numbers of unrepresented litigants.28 Therefore, when determining whether access to justice is achieved by virtual court platforms, the analysis must start with the self-represented litigant and the area of family law.

In response to the pandemic, courts embraced change and added virtual hearings and started streaming hearings on YouTube.29 Additionally, courts continue to expand e-filing systems; however, there are still courts that do not e-file or do not permit self-represented litigants to e-file.30 E-filing allows litigants and attorneys to file documents through the computer instead of having to travel to the clerk’s office at the local courthouse. Even with the court embracing technology, there are still obstacles that prevent access to justice.

One issue that must be addressed is the digital divide. The digital divide refers to the gap between demographics and regions that have access to modern information and communications technology and those that do not.31 In order to have access to the court via Zoom, YouTube, and E-Filing, at a minimum a litigant must possess a cellular phone along with a data package.

The disparities in access to technology exist across race, income, and geographic location.32 When looking at the digital divide in terms of race:

Eight-in-ten White adults report owning a desktop or laptop computer, compared with 69% of Black adults and 67% of Hispanic adults. Eight-in-ten White adults also report having a broadband connection at home, while smaller shares of Black and Hispanic adults say the same—71% and 65%, respectively.33

Income also plays a role in access to technology.

Roughly a quarter of adults with household incomes below $30,000 a year (24%) say they don’t own a smartphone. About four-in-ten adults with lower incomes do not have home broadband services (43%) or a desktop or laptop computer (41%). And a majority of Americans with lower incomes are not tablet owners. By comparison, each of these technologies is nearly ubiquitous among adults in households earning $100,000 or more a year.34

Technological access to the court also requires infrastructure. People in rural areas are more likely to not have access to the internet or to have problems with reliable internet. In response to a 2018 Pew Research Center survey:

adults who lived in rural areas were more likely to say access to high-speed internet was a major problem in their local community: 24% said this, compared with 13% of urban adults and 9% of suburban adults. Similar rates of concern about access to high-speed internet were shared by rural adults in both lower and higher income households, as well as by those with various levels of educational attainment.35

The Pew Research Center reported: “These comparably lower levels of adoption among rural residents may be due to a unique feature of rural life. Even though rural areas are more wired today than in the past, current infrastructure does not support consistently dependable broadband access in many rural areas.”36

Access to the court and access to justice are not the same thing. In order for everyone to have access to the court, an infrastructure needs to be created that allows everyone to have easy access to technology. Still, the question remains—is this new technology a benefit to the community?

Let’s assume we can provide everyone with technology to access the court. Technological access does not mean access to justice. Giving someone a set of top line golf clubs does not make them Tiger Woods. Likewise, giving people access to technology does not mean that they understand how to use it. Furthermore, it does not mean that they understand how the court system works. For a self-represented litigant to truly have access to the court, they also need an understanding of the court rules and procedures.

Possible solutions would have to include courts and community stakeholders. One of the solutions would be to transform law libraries (located within the courts) into areas where litigants and attorneys can come to participate in their hearings and to get procedural questions answered. This should be of no cost to the litigant or attorney. Courts with onsite libraries could transform the law library into an area for hearings. Courts should consider eliminating the law libraries as online legal research has made hard copy books more obsolete.

Another recommendation is for the court and community stakeholders to examine and explore options that will bring communities together to solve access issues. For example, courts can form partnerships with community stakeholders (including city libraries and churches) to allow self-represented litigants and attorneys the ability to access virtual hearings at their locations. These organizations would agree to provide the court with a dedicated area where members of the community may access their hearings on court-issued computers. The court would staff the space with an attorney who can answer questions about technology and procedural concerns. The community stakeholders are simply providing the building and internet access. The court will staff and provide the technology for litigants to access.

No matter which recommendation courts explore, courts should recognize that virtual hearing platforms and the ability to e-file documents by themselves do not provide Black families with “access to justice.” Courts will need to expand partnerships with community stakeholders and employ more attorneys to bring “access to justice” to Black families.

III. Alternative Dispute Resolution

This article concludes with a focus on African Americans and family law mediation. Family mediation is an offspring of family law and is rifted with many of the same issues based on race. Mediation is an alternative to the adversarial model of resolving disputes. A third-party neutral facilitates conversations so that parties may define their issues, generate options, and mutually consent and agree to outcomes. Family mediation practitioners are quick to recite the well-known benefits of mediation. Among the benefits are that mediation is non-adversarial; it’s confidential; it results in more long-term and durable outcomes; and it helps preserve relationships such as co-parent relationships. Positive co-parenting relationships lead to better outcomes for children. However, looking at mediation through the lens of race, Black or African American children and families are being left out in the cold.

In this era of heightened awareness and the advance of #BlackLivesMatter, family mediation must be on the table for examination of how it has been impacted by race. Family mediation is composed of two major parts: the economics, such as child support and property distribution, and the parenting time schedules or determining when and the type of time the parent will spend with the child(ren). Black and white life experiences differ in education, economics, family composition, and dynamics. These experiences influence and impact support, property, and parenting/custody issues in family disputes.

The Annie E. Casey Foundation’s KIDS COUNT Data Center collects data on the well-being of children.37 Information can be analyzed by race and further broken down in other categories such as age and location. “[M]ore than one-third of all Black children in the United States under the age of 18 live with unmarried mothers—compared to 6.5 percent of White children.”38 African Americans are more likely to become parents at younger ages than whites: In 2019 there were 26 births per 1,000 African American teenagers ages 15 to 19 and 11 per 1,000 for whites in the same age group.39 In 2019, 10% of African American children and 5% of white children were in families where the head of household lacked a high school diploma.40 Thirteen percent of African American children and 6% of white children had at least one parent who had been incarcerated.41

Median family income for white families with children was $95,700 and $43,900 for Black families with children in 2019.42 Moreover, 43% of Black children lived in families that received public assistance as compared to 15% of white children.43

The experiences of Black children and families were not positively considered in the design of family mediation. The oversight may not have been intentional or motivated by malice, but it can require intentional and deliberate actions for Black families to access mediation and be receptive to it so they enjoy the promised benefits. Out of the multitude of ways to approach the examination, the authors focus here on three areas: (1) mediation training, (2) access to mediation, and (3) representation in mediation. The goal is to begin to acknowledge and improve mediation so that Black families are not overlooked, misunderstood, and underserved. The authors fully acknowledge that these are not the only areas and that they are interrelated.

A. Mediation Training

Although mediators are trained professionals, generally state court administrative offices prescribe the length of their training and put the topics mediators will cover on court rosters. The purpose of the training is to equip the mediators to meet the professional standards of practice. The following discussion highlights ways the standard model may not prepare mediators to serve many Black families in domestic relations disputes and offers suggestions for improvements.

Many standard mediation training curricula use the following divorce model as the framework: Two middle-class parents, living in a nuclear family, decide to divorce and the mediator must assist them in reaching agreements regarding financial support, spousal support, child support, property division (specifically which parent will keep the marital home), and custody/parenting time. The data discussed above demonstrate that many Black families in domestic relations disputes do not fit this mold. Disputing parties must have access to a system that is reflective and supportive of their own experiences and beliefs.44 Therefore, the curriculum needs to be expanded if cultural competency for mediating with Black families is a desired outcome of the basic training.

Laws, economics, and emotions intersect in mediation proceedings, and mediation training is to prepare the mediation trainee to handle the high stakes, opposing positions, and strong emotions that they are bound to encounter. The mediation trainees customarily delve into understanding the legal issues related to property settlement, child custody/parenting time, spousal support, and child support. Trainees are directed that every individual family is unique and reminded to approach the mediation as such. However, issues of support and parenting time can play out a lot differently in paternity cases when the parties are lower income and/or lack a history of joint financial and parenting decisions. Role plays are a key element in the training and allow trainees to practice skills such as reframing, generating options, and facilitating agreements. The objective of the training is to prepare participants to conduct family mediations. In the current training model, there is a lost opportunity to equip prospective mediators to work with common issues that face Black families.

Furthermore, in the standard family mediation training, there is usually a section on handling emotions. For example, mediators may encounter parties who are disappointed or angry that their romantic relationship with their partner is ending or angry because of the changes in their economic status due to child support obligations. The research on the stages of grief and loss by Elisabeth Kubler-Ross has been used to describe the emotions experienced by the divorcing parties.45 When parties are not married and children are born out of wedlock, there is not a loss of marriage to mourn. In fact, there may not even be a loss of a romantic relationship. One of the authors has observed, during her two decades of mediating and discussing parenting time issues with parents of children born out of wedlock, that distrust exists as the two parents are confronted with reaching agreements regarding their finances and child without a shared history of jointly making these types of decisions.

Expanding basic training curricula to include common themes relevant to the experiences of Black families requires a data-driven approach. This approach helps to ensure myths like Black fathers being disengaged from their children’s lives are not perpetuated and that mediator trainers avoid relics like the Moynihan report.46 Adding a section on implicit bias would also help to equip mediators to acknowledge and disrupt common biases that “adultify” Black children and portray Black mothers and fathers in a negative light. There are credible resources that can be used to improve the basic training curricula to ensure the Black family experience is understood. The National Black Child Development Institute (NBCDI) has been in existence for more than 50 years.47 NBCDI “has been at the forefront of engaging leaders, policymakers, professionals, and parents around critical and timely issues that directly impact Black children and their families.”48 The organization is “a trusted partner in developing and delivering strengths-based, culturally relevant, evidence-based, and trauma-informed resources that respond to the unique strengths and needs of Black children around issues including early childhood education, health and wellness, literacy, and family engagement.”49 On the NBCDI website, one can find materials such as the “Black Child National Agenda: America Must Deliver on Its Promise” that sets out the challenges many Black children and families face.50

Professor Floyd Weatherspoon’s research, writings, and advocacy have centered on the plight of African American males in the justice and educational systems.51 He taught the first course at an American law school on African-American Males and the Law, which “examines legal issues facing African-American males in employment, education, health, and the justice system.”52 Professor Weatherspoon’s background in mediation brings his work to the top of the list to consult when one endeavors to make mediation more inclusive for Black families.53

One early example of an inclusive curriculum was created by the Michigan Third Judicial Circuit Court with the assistance from the Michigan State Court Administrative Office. The curriculum introduced a wide range of topics and roles including the dynamics of mediating cases with parents who had not been married to each other, handling the emotional challenges of paternity disputes, coordinating parenting time when a party has children with multiple partners, and establishing child support when parties are at poverty levels.

For mediators to be able to provide services to Black families, a more inclusive family mediation training model is imperative. This model would cover parents with diverse marital statuses, generational statuses, educational statuses, financial statuses, and familial compositions. It is noted that the expanded training would not only serve Black families but other races including white families who do not fit the traditional married-divorce model that is currently in use.

B. Improving Access

Access is a multiple-faceted and layered issue, but the basic economic theory of supply and demand rules. Mediation services can be costly. Private mediation is usually the most expensive. Some Community Dispute Resolution Centers’ services are priced on a sliding scale, and many court annexed programs are usually free of charge. In Michigan, the Wayne Mediation Center “charges for its services based upon an individual’s ability to pay.”54 The Wayne Mediation Center has partnered with the Third Circuit Court to offer free mediation services for families involved in the court system. The quality of the services may be equal. However, as African American families generally have lower earnings and wealth than white families, they have fewer dollars to access the full continuum of mediation services.55 As with legal services, a greater percentage of African Americans may be priced out of private mediation services. Community Dispute Resolution Centers and court annexed programs may lack funding and staffing and thus may have longer waiting lists. Additionally, family mediation is usually not a singular focus of these entities, and usually is not a significant source of needed revenues for these organizations.

The funding structure for court child support can help one understand some struggles of court annexed mediation programs to offer services. The federal Child Support Enforcement Program reimburses 66% of every dollar state agencies spend on eligible child support enforcement activities, including collecting child support.56 However, while the federal Office of Child Support Enforcement oversees grant funds for parenting time activities, these funds are far more limited.57 Thus, courts may only be able to offer limited mediation services in their programs. The limited selection of services may be late stage mediation, often described as mediation on the courthouse steps occurring right before a hearing occurs. Access, funding, and financing are inextricably tied and must be addressed if the goal is to ensure more African Americans have access.

Limited access translates into limited awareness and experience and may lead to the African American community having less opportunity to develop confidence and trust in the process. Media marketing helps build awareness and whets the appetite for services and products. One study showed that trial lawyers spent $226 million on advertising in Quarter 3 of 2018; there was a lack of comparable information for mediators.58 When resolving disputes, the adversarial process is better advertised. Marketing attracts those who want to prevail by stressing the need to “lawyer up,” even in family situations where any children involved could suffer collateral damage. Mediation is trying to gain a stronghold in the market, but the norm is still having your day in court. Mediation disparities, like health care disparities, exist in the African American community regarding information and access to services.

Three ways to improve access are (1) creating court and private mediation partnership opportunities, (2) locating mediation services inside Black communities, and (3) creating early exposure to mediation. Courts can offer pro bono mediation days, securing the services from private mediators to help address their pending case backlogs. Institutions in Black communities such as churches, recreational centers, and daycares could help to disseminate information about family mediation. Some locations may have private rooms where mediations can be conducted similar to law offices, courthouses, and Community Dispute Resolution Centers. Private mediators, Community Centers, and court personnel can help elementary schools by creating peer mediation training and celebrating the students who complete those programs. In a virtual world, social media offers an inexpensive way to promote mediation services. The approaches are not mutually exclusive. For example, Nepris is a virtual platform that connects students with industry professionals and provides opportunities for organizations to extend their outreach education.59

C. Improving Representation

Lack of African American representation in the field of mediation is another major area of concern when examining family mediation through the lens of race. Based on 2020 U.S. Census data, African Americans comprise 12.4% of the U.S. population, but as Rapper Jay Z found out in a $200 million dispute, there is a dearth of African American Alternate Dispute Resolution professionals.60

According to Zippia’s Mediator Demographics and Statistics in the US, in 2019 there were 2,720 mediators in the United States. Of those:

  • 79.6% were white;
  • 7.0% were Hispanic;
  • 5.9% were Asian;
  • 5.5% were Black or African American;
  • 2% were unknown;
  • 0.0% were Native American.61

Representation is important for many reasons. A Harvard Psychology study proved that the first two things a person sees when they encounter someone else are gender and race.62 Race represents a collective experience in this country, and a shared group identity may build trust and encourage more open communication. For example, “[e]xperts maintain that because of a shared group identity, a [B]lack attorney can more easily communicate with and gain the trust of a [B]lack client. . . .”63 Furthermore, family mediation is a part of family law, which is a part of the justice system. Given that premise, diverse representation is a critical component to build the trust and confidence of diverse groups.

On its website, the Academy of Professional Family Mediators (APFM) acknowledges:

There are too few Professional Family Mediators of color, and their numbers do not reflect the percentage of people of color within our communities. For many, this has resulted in a lower level of trust in the family mediation process. However, trust is the foundation upon which effective family mediation depends. Thus, it is crucial that we reach out to diverse and underserved populations.64

Diverse representation ensures justice and reflects that it exists and is accessible to all.

The APFM states that the first step is “to advance professional and public awareness” of the representation issue.65 Capturing and publishing the current racial demographic makeup of family mediators in particular is needed and will help those who champion the issue to document the need for progress and track the progress made. Corporate America is talking about pipelines, mentorship, and sponsorship as ways to increase diversity.66 These strategies can be used in the mediation profession as well as good next steps. Additionally, organizations can build bridges to allow current dispute practitioners access to business opportunities. Time, talents, and treasures are the needed investments to improve representation.

Endnotes

1. See infra Part I; see, e.g., Pamela M. Casey et al., Addressing Implicit Bias in the Courts, 49 Ct. Rev. 64 (2013) [hereinafter Casey et al., Addressing Implicit Bias].

2. See Elizabeth G. Thornburg, Observing Online Courts: Lessons from the Pandemic, 54 Fam. L.Q. 181 (2020); Samuel V. Schoonmaker IV, How the Judiciary Has Driven Systemic Innovation During the Pandemic, 55 Fam. L.Q. 87 (2022); Lynda B. Munro & Nicole M. Riel, Our Virtual Reality: Facing the Constitutional Dimensions of Virtual Family Court, 54 Fam. L.Q. 245 (2020).

3. See Thornburg, supra note 2; Schoonmaker IV, supra note 2; Munro & Riel, supra note 2.

4. See generally Thornburg, supra note 2, at 219–27; Alicia Bannon & Janna Adelstein, The Impact of Video Proceedings on Fairness and Access to Justice in Court, Brennan Ctr. for Just. (2020), https://www.brennancenter.org/our-work/research-reports/impact-video-proceedings-fairness-and-access-justice-court.

5. See infra Part III.

6. Unless otherwise noted, the discussion in this article is based on the authors’ experiences. See supra note * for further discussion of the authors’ professional expertise.

7. Casey et al., Addressing Implicit Bias, supra note 1, at 69.

8. Id. (citation omitted).

9. Id. at 70.

10. Id. at 65; see Pamela M. Casey et al., Helping Courts Address Implicit Bias: Resources for Education, Nat’l Ctr. for State Cts. (2012), https://ncsc.contentdm.oclc.org/digital/collection/accessfair/id/246/.

11. Casey et al., Addressing Implicit Bias, supra note 1, at 66.

12. Id.

13. Id. at 67.

14. Id.

15. Id.; see Tracy D. Eells & Robert C. Showalter, Work-Related Stress in American Trial Judges, 22 Bull. Amer. Acad. Psychiatry & L. 71 (1994).

16. Casey et al., Addressing Implicit Bias, supra note 1, at 67.

17. Id.

18. Id.

19. Id. at 69.

20. Id.

21. See Jennifer K. Elek & Andrea L. Miller, The Evolving Science on Implicit Bias: An Updated Resource for the State Court Community, Nat’l Ctr. for State Cts. (2021), https://ncsc.contentdm.oclc.org/digital/collection/accessfair/id/911; Elizabeth Tsai Bishop et al., Racial Disparities in the Massachusetts Criminal System (Crim. Just. Pol’y Program at Harv. L. Sch. 2020), https://hls.harvard.edu/content/uploads/2020/11/Massachusetts-Racial-Disparity-Report-FINAL.pdf; Report from the Special Adviser on Equal Justice in the New York State Courts (2020), http://www.nycourts.gov/whatsnew/pdf/SpecialAdviserEqualJusticeReport.pdf.

22. Competency: Purposes and Responsibilities, CORE, https://nacmcore.org/competency/purposes-and-responsibilities/ (last visited July 15, 2022).

23. Id.

24. See sources cited supra at notes 2–4.

25. Elek & Miller, supra note 21, at iii.

26. Casey et al., Addressing Implicit Bias, supra note 1, at 65 (quoting Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1221 (2009)).

27. U.S. Const. amend. VI. Many states require counsel in some circumstances for civil proceedings, including child abuse and neglect and termination of parental rights proceedings. See Status Map, Nat’l Coal. for a Civ. Right to Couns., http://civilrighttocounsel.org/map.

28. See generally Natalie Anne Knowlton et al., Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court, Inst. for the Advancement of the Am. Legal Sys. (2016), https://iaals.du.edu/projects/cases-without-counsel.

29. Coronavirus & the Courts, Virtual Hearings, Nat’l Ctr. for State Cts. Data Visualizations (June 3, 2022), https://public.tableau.com/app/profile/ncscviz/viz/StateCourtResponsestoCOVID-19/CovidTheCourts.

30. Nat’l Ctr. for State Cts., Self-represented Efiling: Surveying the Accessible Implementations 9–11 (May 2022), https://www.ncsc.org/__data/assets/pdf_file/0022/76432/SRL-efiling.pdf.pdf.

31. See Sara Ataske & Andrew Perrin, Home Broadband Adoption, Computer Ownership Vary by Race, Ethnicity in the U.S., Pew Rsch. Ctr. (July 16, 2021), https://www.pewresearch.org/fact-tank/2021/07/16/home-broadband-adoption-computer-ownership-vary-by-race-ethnicity-in-the-u-s/; Emily A. Vogels, Digital Divide Persists Even as Americans with Lower Incomes Make Gains in Tech, Pew Rsch. Ctr. (June 22, 2021), https://www.pewresearch.org/fact-tank/2021/06/22/digital-divide-persists-even-as-americans-with-lower-incomes-make-gains-in-tech-adoption/ [hereinafter Vogels, Digital Divide Persists].

32. See Ataske & Perrin, supra note 31; Vogels, Digital Divide Persists, supra note 30; Emily A. Vogels, Some Digital Divides Persist Between Rural, Urban and Suburban America, Pew Rsch. Ctr. (Aug. 19, 2021), https://www.pewresearch.org/fact-tank/2021/08/19/some-digital-divides-persist-between-rural-urban-and-suburban-america/ [hereinafter Vogels, Some Digital Divides].

33. Ataske & Perrin, supra note 31.

34. Vogels, Digital Divide Persists, supra note 31.

35. Vogels, Some Digital Divides, supra note 32..

36. Id.

37. Annie E. Casey Found.: KIDS COUNT Data Ctr., https://datacenter.kidscount.org/ [hereinafter KIDS COUNT].

38. Zenitha Prince, Census Bureau: Higher Percentage of Black Children Live with Single Mothers, AFRO News (Dec. 31, 2016), https://afro.com/census-bureau-higher-percentage-black-children-live-single-mothers/.

39. About Teen Pregnancy, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/teenpregnancy/about/index.htm.

40. Children in Families Where the Household Head Lacks a High School Diploma by Race and Ethnicity in the United States, KIDS COUNT (Dec. 2020), https://datacenter.kidscount.org/data/tables/7751-children-in-families-where-the-household-head-lacks-a-high-school-diploma-by-race-and-ethnicity#detailed/1/any/false/1729,37,871,870,573,869,36,868,867,133/10,11,9,12,1,185,13/14938,14939.

41. Children Who Had a Parent Who Was Ever Incarcerated by Race and Ethnicity in the United States, KIDS COUNT (data for 2018–19) (updated May 2021), https://datacenter.kidscount.org/data/tables/9734-children-who-had-a-parent-who-was-ever-incarcerated-by-race-and-ethnicity#detailed/1/any/false/1696,1648,1603/10,11,9,12,1,13/18995,18996.

42. Children’s Def. Fund, The State of America’s Children 2021, at 43 tbl.7 (2021), https://www.childrensdefense.org/wp-content/uploads/2021/04/The-State-of-Americas-Children-2021.pdf.

43. Children in Families That Receive Public Assistance by Race and Ethnicity in the United States, KIDS COUNT (updated Dec. 2020), https://datacenter.kidscount.org/data/tables/9789-children-in-families-that-receive-public-assistance-by-race-and-ethnicity#detailed/1/any/false/1729,37,871,870,573,869,36,133,35,16/4038,4040,4039,2638,2597,4758,1353/19062,19063. “Public assistance” here includes Supplemental Security Income, “cash public assistance income,” or Supplemental Nutrition Assistance Program benefits. Id. This statistic does not account for those who had two or more races. Id.

44. See Anastasia Francisquini, A Call for Cultural Competency in Mediation, NJAPM (July 22, 2021), https://njapm.org/news/578246/A-Call-for-Cultural-Competency-in-Mediation.htm.

45. See Elisabeth Kubler-Ross, On Death and Dying (1969).

46. The Moynihan Report: The Negro Family, the Case for National Action (1965), (Jan. 21, 2007), BlackPast.org, https://www.blackpast.org/african-american-history/moynihan-report-1965/.

47. Who We Are, Nat’l Black Child Dev. Inst., https://www.nbcdi.org/who-we-are.

48. Id.

49. Id.

50. Iheoma U. Iruka, Ph.D., et al., Black Child National Agenda: America Must Deliver on Its Promise (Equity Rsch. Action Coal. Sept. 2021), https://equity-coalition.fpg.unc.edu/wp-content/uploads/Black-Child-Natl-Agenda-Final2_Web.pdf.

51. Floyd D. Weatherspoon, Cap. Univ. L. Sch., https://law.capital.edu/FacultyBio.aspx?ID=35139&Type=E.

52. Id.

53. See id.

54. Wayne Mediation Center, Mich. Legal Help, https://michiganlegalhelp.org/organizations-courts/courts/wayne-mediation-center (last visited Sept. 5, 2022).

55. See Kriston McIntosh et al., Examining the Black-White Wealth Gap, Brookings (Feb. 27, 2020); Shelley Stewart III et al., The Economic State of Black America: What Is and What Could Be, McKinsey & Co. (June 17, 2021), https://www.mckinsey.com/featured-insights/diversity-and-inclusion/the-economic-state-of-Black-america-what-is-and-what-could-be.

56. Cong. Rsch. Serv., The Child Support Enforcement (CSE) Program 2 (updated Jan. 7, 2021), https://crsreports.congress.gov/product/pdf/if/if10113.

57. Id. As of 2021, the funds were limited to $10 million a year. “Eligible activities include mediation, counseling, education, development of parenting plans, visitation enforcement, and development of guidelines for visitation and alternative custody arrangements.” Id.; see also Access and Visitation, Off. of Child Support Enf’t (current as of Sept. 3, 2021), https://www.acf.hhs.gov/css/grants/current-grants/access-and-visitation-mandatory-grants.

58. Press Release, ATRA, Study: $226 Million Spent by Trial Lawyers on Advertising in Quarter 3 of 2018 (Jan. 10, 2019), https://www.atra.org/2019/01/10/study-226-million-spent-trial-lawyers-advertising-quarter-3-2018/#:~:text=In%20the%20third%20quarter%20of,million%20over%20Quarter%202%20spending.

59. Nepris, https://www.nepris.com/home/v4.

60. Nichols Jones et al., 2020 Census Illuminates Racial and Ethnic Composition of the Country, U.S. Census Bureau (Aug. 12, 2021), https://www.census.gov/library/stories/2021/08/improved-race-ethnicity-measures-reveal-united-states-population-much-more-multiracial.html#:~:text=The%20largest%20Multiracial%20combinations%20in,Other%20Race%20(1%20million); Sopan Deb, Jay Z Criticizes Lack of Black Arbitrators in a Battle over a Logo, N.Y. Times (Nov. 28, 2018), https://www.nytimes.com/2018/11/28/arts/music/jay-z-roc-nation-arbitrators.html.

61. Mediator Demographics and Statistics in the US, Zippia, https://www.zippia.com/mediator-jobs/demographics/ (last visited July 15, 2022).

62. Traci Pedersen, Your Brain First Notices Race & Gender Before All Else, PsychCentral (Oct. 12, 2013), https://psychcentral.com/news/2013/10/12/your-brain-first-notices-race-gender-before-all-else#1.

63. Yolanda Young, Why the U.S. Needs Black Lawyers Even More Than It Needs Black Police, Guardian (May 11, 2015), https://www.theguardian.com/world/2015/may/11/why-the-us-needs-black-lawyers.

64. Diversity, Equity & Inclusion, APFM, https://apfmnet.org/diversity-equity-and-inclusion/ (last visited July 15, 2022).

65. Id.

66. See, e.g., Rod Adams, Building a Diverse Workforce Starts with Mentorship and Sponsorship, Fortune (July 12, 2021), https://fortune.com/2021/07/12/workplace-diversity-black-latinx-mentorship-sponsorship-pwc/.

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Jenae’ Anderson, Zenell Brown, and Viola King

Attorney

Jenae’ Anderson has been a practicing attorney in the State of Michigan since 2008. She has been a Family Law Attorney since 2012. In this capacity, Jenae’ has served as the liaison to the State of Michigan representing the largest county on cases involving the Uniform Interstate Family Support Act and the Uniform Child Custody Jurisdiction Enforcement Act. Jenae’ served on the District H. Character and Fitness Committee for the State Bar of Michigan from 2015–2018. Jenae’ has served on the Strategic Plan Team for the Third Circuit Court Outreach Team, which focused on bridging the gap between the court and the community. Jenae’ holds a Bachelor of Science Degree in Criminal Justice from Wayne State University (’02) and a Juris Doctor from Thomas M. Cooley Law School (’08).

Zenell Brown is an attorney, mediation trainer, and certified diversity professional. She is the author of Coffee and Conversations: Inclusion and Belonging. She is the Court Administrator for the Third Circuit Court in Detroit, Michigan, and on faculty for the Institute for Court Management and the Michigan Judicial Institute. She has been appointed by Michigan Chief Justice Bridget McCormack to the Michigan Judicial Council. She is the president of the Detroit Affiliate of the Black Child Development Institute and co-chair of diversity for the Detroit Bar Association and the Michigan Women Lawyers Association. In 2021, The National Association of the Negro Business and Professional Women’s Clubs, Inc., awarded Zenell the Sojourner Truth Award.

Viola King was previously employed as a Family Division Referee in the Domestic Section and the Juvenile Section of the Third Judicial Circuit Court. She presided over evidentiary hearings and motions on the record and managed a weekly docket of 600+ cases per year in formal proceedings. In addition, she practiced Child Welfare Law for the Juvenile Law Group, PLLC; was a Staff Attorney for the Legal Aid and Defender Association; and was in private practice while maintaining a managerial position in the private mental health sector. She is a graduate of the Institute of Court Management, Certified Court Manager Program (Certificate, ’21), Michigan State University School of Criminal Justice Judicial Administration Program (Certificate, ’19), Thomas M. Cooley Law School (J.D., ’03, magna cum laude), Wayne State University (M.A., Counseling, ’96), and Michigan State University (B.A., Criminal Justice, ’89). She is a member of the State Bar of Michigan and the State of Michigan Board of Counseling and serves as a member of the State Bar of Michigan Access to Justice Committee.