Perspectives On Parental Alienation, Child Custody And Dispute Resolut

ion SystemsPerspectives on Parental Alienation, Child Custody and Dispute Resolution Systems
Contested child custody provides many challenges for alternate dispute resolution. With no-fault divorce, and a standard for determining custody in light of the child’s best interest, judges are besieged with a backlog of disputed custody cases without clear and concrete guidelines to follow in deciding whether to favor the mother or the father. Many experts in family law – both from the legal and mental health arenas – have observed an increase in deceptive and manipulative tactics used by divorcing couples. This paper looks at Parental Alienation Syndrome, which is a complex manifestation of mental and emotional abuse resulting from conflicted parents fighting for custody. Recommendation are given for a model that could be employed by family law mediators that could decrease the number of custody cases that go to litigation, while ensuring that families suffering from Parental Alienation Syndrome receive prompt and effective intervention.
Mediation in Child Custody Disputes – Historical Perspectives
The surge in divorce rates during the past two decades along with major judicial reforms since the 1970’s has led to several significant changes in the ways that courts handle family law cases. Divorce and custody laws have been widely revised by states, and alternatives to litigation have emerged and gained prominence. Mediation has become a popular option, and in some states, mediation is mandatory for divorcing couples. Judicial systems in California, Minnesota and Wisconsin were early experimenters with the concept of conciliation courts, where parents were encouraged to work out divorce and custody conflicts. States that have introduced mandatory mediation in cases of contested custody include Delaware, California, Maine and Florida. (Herman, 1990)
There has been research that supports mediation as a positive intervention in custody disputes. Studies of custody cases in several large cities report that over half (between 50 and 90 percent) of the cases are settled through mediation. (Atkinson, 1996) A large empirical evaluation of mediation services in three court-based programs, showed generally high levels of user satisfaction according to the researchers. (Pearson & Thoennes, 1986) Both the Denver Mediation Project of the early 1980’s and a study conducted in Toronto found mediation to be successful in keeping divorcing families out of court. The Toronto study compared couples that mediated custody with those that litigated without mediation; only 10 percent of mediated couples returned to the courtroom after two years with problems related to custody or visitation, while 26 percent of the non-mediated couples were back in court within two years. (Herman, 1990)
Herman (1990) demonstrates that there are significant challenges to the suitability of mediation in some custody disputes. He asserts that the assumption that mediation will deter the bitterness, disappointment, and anger of divorcing couples and lead them toward cooperation, understanding, and tolerance has not been documented. Even a highly skilled mediator cannot compensate for the sharp differences in sophistication and power that often exist between divorcing spouses. (Herman, 1990, p. 56) In a small study of forty divorcing couples conducted at the University of Virginia, half the couples opted for mediation, while the other half litigated without mediation. The mothers in the mediation group reported more psychological distress than did the litigating mothers. (Herman, 1990)
The issue of mandatory mediation of child custody cases has received criticism. Carol Bruch, professor of Family Law at the University of California at Davis, publicly testified before the New York state legislature about her concerns that children are not best represented in mediation and women are often at a distinct disadvantage. She observes that there is no research evidence to support a claim that children whose parents mediate custody settlements do better than children of litigating parents. Furthermore, she points to her own experience with family law attorneys and mediators to support her assertion that the husband and his views are accorded more respect than the wife and her views. (Herman, 1990)
These conflicting viewpoints regarding the pros and cons of mediation in child custody disputes indicate a need for additional research. There is no hard evidence that mediation is the preferred solution to any given custody dispute, that a party’s position will be heard any more