MEDIATION AND THE PROCESS OF FAMILY LAW REFORM

The family law system needs fixing. The real question is how to go about fixing it. The concept of mediation and its process should be vital in the rethinking and restructuring of the system. This article discusses how mediation can be used in policy-making to get all the stakeholders in the family law system to creatively and non-judgmentally work toward reform. The author contends that increased legal access and speedy low-cost dispute resolution should be at the top of the reform agenda. Courts and professional offices are valued for their consumer-friendliness, stressing nonadversarial settings and cleint education. Unbundling is urged to be not only accepted but also promoted as a practice to meet the legal needs of families. The article concludes with the argument that effective reform should incorporate the principles of mediation, and the reform process should take advantage of models of consumer friendliness from both the public and private sectors .     

DISRUPTING THE PATHWAY FROM FOSTER CARE TO THE JUSTICE SYSTEM—A FORMER PROSECUTOR'S PERSPECTIVES ON REFORM

Nearly half a million children are victims of abuse and neglect and part of our foster care system. Over time, many of these youth cross into our juvenile and then adult justice systems; some will end up as federal offenders, immersed in a process where mandated penalties provide little room for flexibility or consideration of the characteristics and needs of the individual. This article will offer the perspectives of a former prosecutor and child welfare advocate on: (i) the current conditions and challenges within our foster care system—the feeder for many youth into gangs and criminal activity; (ii) the misaligned priorities and disheartening patterns we currently see in our justice system; and (iii) the ill‐advised practices, that set our nation apart from the rest of the world, allowing juvenile offenders to receive life without parole sentences. The article will then discuss a series of recommendations in all of these areas that would enable us to turn the corner and chart an improved and more hopeful path for our nation's vulnerable and at‐risk children and youth.     

MEDIATIVE STRATEGIES IN THE MANAGEMENT OF CHILD SEXUAL ABUSE MATTERS

This article presents the theoretical importance and practical applications of mediative strategies in family conflicts where sexual abuse allegations are involved. Traditional approaches often further the breakdown of the family and harm the children. The linear nature of the legal system in which these conflicts are played out, the strong moral and cultural influences in issues concerning sexuality, and the approach of the professionals involved are factors considered. When multiple professionals intrude simultaneously on a family, there is severe disruption of the boundaries and internal hierarchy of the system. The process of mediation allows for effective conflict management because it is premised on systemic problem solving. The article catalogues specific mediative skills, strategies, and techniques that can be applied. It also encourages the use and incorporation of mediation in court systems to more effectively manage family conflicts such as divorce and juvenile matters, where sexual abuse is often alleged.     

DECISION-MAKING IN THE CRIMINAL COURTS:

This article attempts an analysis of the relationship between the guilty-plea bargaining process and presentence investigation reports. It is argued that because plea-bargaining has increasingly come to involve bargaining over sentence. probation officers, as a consequence, have increasingly come to experience encroachment upon their decision-making autonomy. In this predicament they have found little support from judges, who, committed to norms of managerial efficiency will reassert the primacy of the plea-bargain when probation officers refuse to ratify previously negotiated sentence agreements. The policy implications of this for the criminal justice system are discussed.     

COLLABORATIVE PRACTICE IN THE CANADIAN LANDSCAPE

This article looks at the growth of collaborative practice in Canada in the last decade and the legal and Canadian cultural underpinnings influencing this growth. Government recognition of and support for collaborative process has come from both the federal and provincial governments. Statutory support in family law statutes and in ethical standards for lawyers encourage alternate dispute resolution and have helped normalize consensual dispute resolution options. The article also looks at decisions from Canadian courts relating to the practice of collaborative law, including the confidentiality of collaborative process negotiations as set out in the participation agreement and the standard of care necessary for collaborative lawyers.     

THE ROLE CONCEPT IN JUDICIAL RESEARCH

This article addresses the state of research which uses role concepts to explain the process of making decisions in legal institutions. After identifying several important limitations of previous research, a new scale—measuring normative orientations toward discretion—is proposed. The results of administering this scale to samples of Iowa and California judges suggest that the measure is fairly reliable, and an argument is made in favor of its validity. The article concludes with some observations on the importance of measurement in research on the legal process.     

THE UTILITY OF THE DEVIANT CASE IN THE DEVELOPMENT OF CRIMINOLOGICAL THEORY*

This article asserts that the deviant case method offers a potential avenue for enhancing theory directed at explaining crime by using more available information to better connect the process of analyzing cases with that of explanatory refinement and elaboration. This approach has facilitated theoretical development in other social sciences and has proven useful where applied in criminological inquiry. Extant research is reviewed, and an empirical example is presented to demonstrate how this approach might be operationalized in criminological inquiry using quantitative methods. Conclusions relevant to future research are considered.     

REINVENTING THE PYRAMID

This article describes an orthodox teaching and learning process known as the pyramid. It sets out how this basic process can be used in mediation (and other) training courses. The variations, advantages, and disadvantages of this learning procedure are described. Analogies are drawn between the pyramid method and mediation. Finally, mediators are challenged to add this process and its variations to their repertoires both as trainers and as mediators.     

THE FUTURE COURT

This article sets forth the author's vision of a true family court. It examines some of the liabilities inherent in an adversary system and proposes a problem-solving approach.     

ROCK‐PAPER‐SCISSORS: PLAYING THE ODDS WITH THE LAW OF CHILD RELOCATION

This article offers for inspection the proposition that the adversarial evidence‐based litigation process is unsuitable for resolving custody cases in general and relocation cases in particular. It analyzes the leading cases from New York, Massachusetts, California, England, Canada, and Australia. It reaches a conclusion that no jurisdiction has devised a legal standard or formula that enables a judge to predict the future best interest of a child if that child is allowed to relocate with one parent away from the other. For this reason, the court has a duty to offer as sophisticated and friendly a settlement process and atmosphere as possible. However, knowing that judges will still be required to resolve these difficult cases because they often seem impervious to settlement, the article offers thirty‐six factors that a court should consider in all move‐away cases. By relying on each of these factors that is relevant to the case, the parents will have an understanding of why the decision was made the way it was and it will also allow for effective appellate review.     

GENDER ISSUES IN THE CALIFORNIA COURTS

The Judicial Council of California's Advisory Committee on Gender Bias in the Courts is one of approximately 30 similar task forces throughout the country charged with investigating issues of bias based on gender in the various state court systems. This article summarizes portions of the committee's draft report, "Achieving Equal Justice for Men and Women in the Courts," and its findings and recommendations. The crucial area of family law including cases where there are allegations of domestic violence is its focus. This article also describes the committee's investigatory process and collaborative efforts and explains the steps planned to implement the advisory committee's blueprint for change.     

MEDIATION IN THE LOS ANGELES COUNTY SUPERIOR COURT JUVENILE DEPENDENCY COURT

This article presents the results of a 9-month interdisciplinary task force convened to review the mediation process in the juvenile dependency court and to develop guidelines for its operation by the conciliation court, stemming from a grand jury recommendation.     

THE PRESS AND THE JUDICIARY： COURT AND JUDICIAL REPORTS IN THE PREss IN ENGLAND AND WALES

Western scholars have argued that image making and image management are a preoccupation of the judiciary. Images of the judiciary may take a variety of forms and be produced for kinds of audiences. One form of judicial image making and image management is live performances in the courtroom and other court settings. Another is the written judgment where the preoccupation is the style of the written text. Press and other mass media reports of judicial activity are another. The audience for judicial images is equally diverse, from fellow judges, lawyers in the courts and the wider legal community, the litigants before the courts to the executive, legislature and the public both in the courtroom and beyond. The image of the judiciary that is available to the public has a particular significance in Western rule of law democracies. As a general rule courts and the judiciary are required to operate in public and their activities must be open to public scrutiny. A recent policy manifestation of this goal is debated about confidence in the justice system and initiatives designed to improve confidence. In the majority of cases public scrutiny of judicial activity and public confidence in the judiciary relies upon the media. Objective and accurate press and media reports play a key role in shaping public understanding of the judiciary and generating or undermining confidence in that institution. Reports in regional and national newspapers have long been an important source of information, shaping public knowledge and facilitating public scrutiny of the justice system. In the UK, there is almost no scholarship on these representations past or present. The result is little known about the representation of the courts and the judiciary in press reports. Little is known about what the diligent reader of these reports can learn about judicial activity. The aim of this article is to take a first step towards changing that state of affairs. It uses a data set made up of 205 contemporary domestic newspaper reports of court and judi     

BRINGING CHILDREN TO THE MEDIATION TABLE:

With the rise of divorce mediation as an effective means of resolving divorce and custody disputes, a question that arises is whether a child should actively participate in the mediation process to make his or her voice heard. This article discusses the costs and benefits of involvement, focusing on four specific approaches to the inclusion of children in divorce mediation. This article comes to the conclusion that the integration of children in mediation ought to be considered on a case-by-case basis, and further proposes that a child be included in divorce mediation in circumstances where the child's input is needed to help parents resolve an issue of dispute that concerns their child's interests.     

THE VIOLENCE AGAINST WOMEN ACT

Domestic abuse allegations have become a serious problem in our society. They present our court system with difficult decisions and problems. This becomes an even more difficult situation when the abused is an illegal immigrant. Many of the abused are too frightened or intimidated to go to the authorities for help. This article examines how the U.S. government is attempting to protect these immigrants .     

THE SELF‐REPRESENTED LITIGANT: IMPLICATIONS FOR THE BENCH AND BAR

It is widely accepted that the number of self‐represented litigants has skyrocketed nationwide, especially in family law cases. Although nationwide comprehensive data on the number of self‐represented litigants do not exist, anecdotal evidence supports the belief that self‐representation is increasing. The challenge for courts and the entire legal profession is how to respond. Most observers in Indiana would agree that the traditional model of family law litigation—both spouses represented by lawyers settling their disputes before a judge—is no longer the norm in family law cases. Judges face a dilemma: assisting a self‐represented litigant to level the playing field against a represented party is seen by many as violating impartiality, even if the assistance is rendered to create a just result. In an effort to address the situation, the Indiana Supreme Court created the Pro Se Advisory Committee in April 2001. This article explores the long‐range implications of the issue of self‐represented litigants on Indiana's court system in hope that it will provide some insight for other jurisdictions. The first part of the article addresses the numbers of self‐represented litigants by tracking growth or declines in self‐represented cases and assessing whether there are any pockets of self‐represented litigants geographically or in certain case types. The second part of the article puts Indiana into context with the rest of the nation and reviews national trends. The third section reviews Indiana's response to self‐represented litigants over the last decade. The fourth section reviews current and ongoing projects in Indiana. The article concludes that the issue of self‐represented litigants will not fade away and that the challenge that guides the legal profession is how we provide equal access to justice for all who enter our courthouses.     

EMERGING ROLES OF THE FAMILY LAWYER

The author examines the problem of representing adverse interests of the parties in family law disputes and proposes some measures for attorneys to address this need. The role of the attorney shifts from being merely an advocate to becoming a consultant and adopting other roles, depending on the needs and wishes of the client. According to this article, the bar must become more sensitive to the needs of the public and the call for a simpler, more “user-friendly” system.     

THE DEMISE OF THE DISPARATE IMPACT THEORY

Books reviewed in this article: Book Reviewed in this article: Shortly after this article was completed and accepted for publication, Congress passed the 1991 Civil Rights Act. In order to understand and appreciate the significant implications of the new legislation, it is first necessary to review the legislative and litigation history of disparate impact discussed here. Immediately following is a legislative update entitled “The Resurrection of the Disparate Impact Theory?”     

FITTING THE FORUM TO THE FAMILY FUSS

This article analyzes advantages and disadvantages of mediation, collaborative law, and cooperative law based on the parties' capabilities, attitudes about professional services, and assessments of and preferences about the risks of various procedures. Each of these procedures has virtues and there is great value in providing clients and practitioners with a choice of procedures. Under collaborative and cooperative law, lawyers and clients agree to focus exclusively on negotiation from the outset the case, typically using a problem-solving process. Collaborative law involves a written "disqualification agreement" between all the parties and their lawyers under which lawyers are disqualified from representing parties in litigation if either party chooses to litigate. Cooperative law is similar but does not use the disqualification agreement. Because most communities do not have lawyers offering cooperative law, collaborative law groups should encourage at least some of their members to offer clients the option of cooperative law.