EMPOWERING CHILDREN IN MEDIATION

The available research in the mediation arena regarding child custody disputes indicates a lack of and growing need for effective intervention techniques. The authors present practicing mediators with a specific intervention model for interviewing, safeguarding, and empowering children in the process of mediating custody disputes. The mediation model utilizes a structured, strategic, and process-oriented approach with a family systems theoretical orientation and may be used in private or court-connected settings. The model presented here goes beyond the child-centered interview norm to the inclusion of the child in the process to assist parents in decision making. The model supports the current California statute under Family Code Section 3023, which states that "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an award of custody or modification." The model does, however, maintain the position that the final decision continues to lie with the parents or the courts and not the child.     

DIVORCE MEDIATION: Research and Reflections

Mediation and other forms of alternative dispute resolution (ADR) grew rapidly in the last few decades as a result of high divorce rates, frequent conflicts between parting parents, the resulting administrative burden on courts, and especially concerns about damaging effects on children and postdivorce family relationships. This article focuses on our longitudinal research involving randomized trials of mediation and adversary settlement to support the conclusions that mediation can: (1) settle a large percentage of cases otherwise headed for court; (2) possibly speed settlement, save money, and increase compliance with agreements; (3) clearly increase party satisfaction; and (4) most importantly, lead to remarkably improved relationships between nonresidential parents and children, as well as between divorced parents—even twelve years after dispute settlement. The key "active ingredients" of mediation are likely to include: (1) the call for parental cooperation over the long run of co-parenting beyond the crisis of separation, (2) the opportunity to address underlying emotional issues (albeit briefly), (3) helping parents to establish a businesslike relationship, and (4) the avoidance of divisive negotiations at a critical time for family relationships. We call for more research on mediation and other forms of ADR, as well as a renewal of the excitement and optimism of the "first generation" of mediators, qualities that are "active ingredients" in any successful social or psychological intervention.     

IN THE BEST INTERESTS OF CHILDREN

In the traditional family law and child protection litigation where the court is asked to make determinations based on the best interests of a minor, the adversarial, rights-based model often fails to serve the interests of children and families and may be more harmful than beneficial to children relative to other possible methods of dispute resolution. This article examines the shortcomings of such an adversarial, rights-based model; briefly highlights the literature on dispute resolution systems design; and then proposes a new approach to better serve the interests of children in family law and child protection cases.     

CHILD‐FOCUSED AND CHILD‐INCLUSIVE DIVORCE MEDIATION: COMPARATIVE OUTCOMES FROM A PROSPECTIVE STUDY OF POSTSEPARATION ADJUSTMENT

This study compared outcomes over 1 year for two groups of separated parents, who attended two different forms of brief therapeutic mediation for entrenched parenting disputes. The two interventions each targeted psychological resolution of parental conflict, enhanced parental reflective function, and associated reduction of distress for their children. The child‐focused (CF) intervention actively supported parents to consider the needs of their children, but without any direct involvement of the children, while the child‐inclusive (CI) intervention incorporated separate consultation by a specialist with the children in each family, and consideration of their concerns with parents in the mediation forum. Repeated measures at baseline, 3 months, and 1 year postintervention explored changes over time and across treatments in conflict management, subjective distress, and relationship quality for all family members. Enduring reduction in levels of conflict and improved management of disputes, as reported by parents and children, occurred for both treatment groups in the year after mediation. The CI intervention had several impacts not evident in the other treatment group, related to relationship improvements and psychological well‐being. These effects were strongest for fathers and children. Agreements reached by the CI group were significantly more durable, and the parents in this group were half as likely to instigate new litigation over parenting matters in the year after mediation as were the CF parents. The article explores the potential of CI divorce mediation to not only safely include many children in family law matters related to them, but also to promote their developmental recovery from high‐conflict separation, through enhanced emotional availability of their parents.     

SETTLEMENT‐FOCUSED PARENTING PLAN CONSULTATIONS: AN EVALUATIVE MEDIATION ALTERNATIVE TO CHILD CUSTODY EVALUATIONS

The divorce mediation field has recently seen the development of several “hybrid” alternative dispute resolution approaches to child custody disputes. The “settlement‐focused parenting plan consultation” (SFPPC) is a form of evaluative mediation, conducted by a “parenting plan consultant” (PPC), who possesses the combined expertise of a mediator and child custody evaluator. This hybrid model is a more expedient and considerably less expensive approach than a child custody evaluation, but preserves the hallmark mediation principle of self‐determination. The article describes the theory underlying the SFPPC, delineates the role requirements, procedures, and techniques of the parenting plan consultant, and addresses legal and ethical issues.     

CULTURE, DIVORCE, AND FAMILY MEDIATION IN HONG KONG

Over the past three decades, Hong Kong has witnessed unprecedented economic prosperity, a decrease in family solidarity, an increase in social problems, and a dramatic rise in the incidence of divorce. Under colonial rule for 150 years, which ended with the return of sovereignty to China in 1997, the identity of the Hong Kong Chinese is a combination of traditional Chinese and modern Western culture. Despite Western influences, Chinese cultural heritage remains the major source of influence in all aspects of life. This article presents a summary of traditional Chinese culture, characteristics of contemporary Hong Kong society, factors believed to influence the high divorce rate, and the impact of divorce on Hong Kong families. The development, use, acceptability, and effectiveness of mediation in Hong Kong is reviewed, and suggestions for adapting it to Chinese families are proposed. Direction for future development of mediation in Hong Kong focuses on the need for further research to develop a scientifically sound knowledge base that will help to inform culturally competent mediation practice.     

THE NEW BEGINNINGS PROGRAM FOR DIVORCING AND SEPARATING FAMILIES: MOVING FROM EFFICACY TO EFFECTIVENESS

This article describes a program of research on effectively transporting the New Beginnings Program (NBP), a university-tested prevention program for divorced families, to community settings. The four steps in this research are described: (1) selecting a community partner, (2) developing effective methods of engaging parents, (3) redesigning the NBP to be easily delivered with high quality and fidelity in community agencies, and (4) adapting the NBP to meet the needs of the full population of divorcing families. The article concludes with a discussion of plans for an effectiveness trial to evaluate the NBP when delivered in community settings.     

ANALYSIS OF MEDIATION AGREEMENTS OF FAMILIES REPORTING SPECIFIC TYPES OF INTIMATE PARTNER ABUSE

The purpose of this study was to carefully measure Intimate Partner Abuse (IPA) behaviors among a large ( n  = 864 couples) sample of pairs of husbands and wives who were mandated to attend divorce mediation and then to: categorize the behaviors into theoretically-driven types of IPA, determine the number of cases screened out of mediation for any reason, and investigate whether measured outcomes of mediation (primary physical and legal custody) were related to IPA. Results indicated that rarely was IPA not reported—the most frequently reported IPA behavior was psychological abuse (98% of wives; 97% of husbands), followed by physical abuse (58% of wives; 54% of husbands), escalated physical abuse (62% of wives; 50% of husbands), and sexual intimidation, coercion and rape (56% of wives; 29% of husbands). Rarely were couples reporting IPA screened out of mediation (5%), and rarely were supervised parenting time or restrictions on contact between parents included in mediated agreements made by couples reporting IPA (6.5%). The overall level of IPA was unrelated to the specific terms of mediated agreements; however, by far the most frequent type of mediated agreement the couples' negotiated in mediation was for primary physical custody to go to the wife and for the husband and wife to have joint legal custody (59% of cases). Analysis of the implications of these findings and policy recommendations are included.     

CHILD PROTECTION MEDIATION: A 25-YEAR PERSPECTIVE

This article reviews the creation, development, and growth of child protection mediation (CPM) in the United States. Starting with a few pilot projects in the 1970s, CPM has grown throughout the country. The article traces child protection's development through the publication of the Resource Guidelines and Model Courts and then discusses what the necessary ingredients for a mediation program are. Mediation is then discussed from a judicial perspective. Barriers to mediation are listed, followed by a discussion of special issues that arise when developing and maintaining CPM programs. The article concludes with the observation that CPM is now recognized as a best practice by most judges and court improvement professionals and that it continues to grow.     

THE CALM AFTER THE STORM: USING MEDIATION TO RESOLVE PARENTING DISPUTES IN THE WAKE OF NATURAL DISASTERS

Hurricane Katrina not only tore apart communities along the Gulf Coast, it displaced hundreds of thousands of families throughout the country. Included in the massive numbers of displaced families were children from divorced, separated, or unmarried parents. As a result, many children have since relocated far away from one of their parents without court permission, causing an influx of parenting disputes among the unmarried parents. Litigation concerning parenting disputes that follow natural disasters is not only expensive, but is emotionally taxing on both parents and children and floods the already drained court system. This Note discusses alternative ways in which parenting disputes can be resolved following natural disasters. It explains how children are affected by relocating away from one of their parents and how those effects are comounded by natural disasters. Further, it explains how alternative dispute resolution methods help alleviate the effects of parenting disputes, specifically relocation disputes, on children. Finally, this Note proposes that all parents should be mandated to mediate any parenting disputes following natural disasters.     

A GUIDE TO EFFECTIVE CHILD PROTECTION MEDIATION: LESSONS FROM 25 YEARS OF PRACTICE

What are the essential elements of a successful child protection mediation program? What outcomes are we seeking? How do we define success? How do these inform or direct program development so that it supports these outcomes? How do we know if it is working? And, how do we start out on the right foot? We are in the enviable position now, after 25 or so years, to benefit from lessons learned from the experiences of many programs. This article provides a 25‐year perspective on key elements that have contributed to the success of child protection mediation programs.     

FACTORS AFFECTING THE OUTCOME OF DIVORCE AND PATERNITY MEDIATIONS

Divorce mediation, an alternative to litigation when resolving disputes raised by the dissolution of a marriage or the separation of unmarried parents, has gained popularity over the past few decades. Yet, research is needed to better understand what processes make family mediation successful and for whom family mediation is successful. To study predictors of reaching agreement in family mediation, we gathered data from divorce and paternity cases at the Indiana University Maurer School of Law Viola J. Taliaferro Family and Children Mediation Clinic. Numerous factors, including history of intimate partner violence, father's reported concerns about participating in mediation, higher levels of father's income, number of mediation sessions, and attorney representation, were associated with lower rates of agreement. Associations between significant predictors are presented, as well as the combined impact of attorney representation and a history of relationship violence, which together significantly predicted lower agreement rates. The implications of these findings for understanding family mediation processes are considered.     

SUPPORTING FAMILY STRENGTH: THE USE OF TRANSFORMATIVE MEDIATION IN A PINS MEDIATION CLINIC

This article describes, and explains the rationales for, the establishment of an innovative program in which a law school and two social services agencies are collaborating in a mediation clinic that uses the transformative model of mediation to serve clients in cases that seem ideally suited to benefit from this approach to practice—so-called "PINS" (persons in need of supervision) cases involving conflict within families, between parents and their adolescent children. The article first describes the evolution of the PINS system and the changing views of its purpose, especially in New York State. It then offers a brief introduction to the unique features of the transformative approach to mediation and explains why that approach in particular is likely to mesh with current understandings of the needs of the families involved in these cases. Finally, the article describes the innovative "Family Solutions Program" and how it uses transformative mediation to help these families and suggests that experience of this program shows how use of the transformative model, in particular, could be valuable not only for clinical education but also for effective volunteer training and supervision in mediation programs generally.     

EMPLOYING MEDIATION TO APPROACH TRUANTS

Truants have been dealt with by state and school officials with heedlessness, suspension, expulsion, and placement under the power of the courts. One problem faced in decreasing truancy is its lack of a common definition. Statistics show high rates of truancy with kids who subsequently drop out of school and there is a strong correlation between drop-out and unemployment, welfare, low salary, and imprisonment. The juvenile justice system does not reach the root of the truant's individual problems or adequately attempt to solve or assist the child and family in its goal to develop constructive and autonomous individuals.
Mediation is an alternative to a punishment-oriented approach to truancy. Mediation is a process in which a neutral third party helps participants reach their own agreement for resolving a dispute. Mediation is adaptable to the many different causes of truancy and can provide multiple benefits to truants and their families. The Ohio Commission On Dispute Resolution & Conflict Management has the most accomplished and consistently progressing truancy mediation program in the nation.
Critics of mediation have scrutinized the process for not placing enough emphasis on mediation's major elements, such as premediation instruction, exploitation of the informality of the process, and a lack of funding, which may render mediation weak and inefficient. Maintaining and emphasizing particular elements will benefit jurisdictions in their utilization of the process.     

DOMESTIC VIOLENCE,DOVE, AND DIVORCE MEDIATION

The primary objective of this article is to describe DOVE, a 19‐item instrument designed to assess and manage the risk of domestic violence between partners during and following their participation in divorce mediation. Assessing risk, more specifically how DOVE can be used to assess risk, is described first. The resulting risk scores (TOTDOVE) are used to assign individuals to risk categories. Problems associated with using categorical, frequency, and probability risk assessment formats in interpreting and communicating risk are discussed in the second segment of the article. A dual, categorical/probability format is advocated. Managing risk using Safety Plan interventions that are linked with risk category and predictor subscores on control, substance abuse, anger, relationship problems, mental health problems, and conflict is covered in the final segment.     

A REVIEW OF PROGRAMS DESIGNED TO PREPARE PARENTS FOR CUSTODY AND VISITATION MEDIATION

Mediation orientation programs are an increasingly common resource for parents preparing to mediate custody and visitation disputes. In this paper, we review empirical studies on program effectiveness and describe a range of programs in the U.S. Most are brief and psychoeducational in nature, focusing on the mediation process and the effects of conflict on children. Programs typically provide information through reading materials, slides, and videos, either in a group setting or online. Few evaluate program effectiveness. We offer suggestions for program evaluation and introduce an assessment‐based framework for providing individualized services for parents. Key Points for the Family Court Community

• ? Few Mediation Orientation programs have been empirically evaluated.
• ? Useful research designs would include (1) assessing participants both before and after the program and (2) comparing program participants to non‐participants.
• ? The psychoeducational components of Mediation Orientation programs may need to be tailored for low‐ and high‐conflict couples.

     

A NATIONWIDE SURVEY OF PROGRAMS FOR CHILDREN OF DIVORCING AND SEPARATING PARENTS

This article surveys programs for children of separation and divorce throughout the United States. It provides an overview of their development and discusses some of the research which has been performed to measure the efficacy of them. It focuses on some specific programs, and it provides information about the types of programs which are available in each state. Finally, it provides insights into the next steps for such efforts.