NCJ Number
94583
Journal
University of California Davis Law Review Volume: 12 Issue: 2 Dated: (Summer 1979) Pages: 582-603
Date Published
1979
Length
22 pages
Annotation
This review of problems created by adversary judicial resolution of child custody and visitation disputes between parents proposed mediation as the method most appropriate for family dispute resolution.
Abstract
Judicial resolution of custody and visitation disputes places a costly burden on the courts and leads to serious emotional and financial problems for the families involved. Attorneys' adversary approach to custody cases intensifies these problems and encourages lengthy litigation, while ambiguous legal standards further aggravate the strain. Current responses such as legal representation for the child, court-ordered social investigations, and use of mental health professionals as experts do not deal effectively with the inherent shortcomings of judicial resolution. The establishment of Conciliation Courts in several jurisdictions offers a more constructive nonadversary alternative, but local political and economic conservatism has limited their development in many areas. Both arbitration and mediation are appropriate nonjudicial approaches to custody and visitation disputes because they are informal, speedy, inexpensive, and focus on solving a problem rather than assessing guilt or innocence. Mediation has all the advantages of arbitration, but also fosters the values of privacy and self-determiniation which are essential to stable, healthy family relationships. A trained mediator can provide psychological counseling and utimately produce stable agreements that are unlikely to return to court. Family law practitioners can play a key role in reducing harm to families by counseling their clients toward nonjudicial resolution of family conflicts. The paper provides 114 footnotes.