The divorce rate began its sharp increase in the early 1960’s and more than doubled by the end of the 1970s. This was accompanied by dramatic changes in cultural traditions, societal expectations, and divorce and child custody laws which led to increased reliance on the courts to adjudicate separation and divorce disputes, including decisions related to children. By the late 1970s, more than 1 million children under age 18 were affected by divorce each year, an increase that overburdened the capacity of courts to handle custody and access matters. Although the divorce rate decreased slightly in the 1980s and 1990s, a trend that continues, the number of families with children affected by parental separation each year has remained relatively stable.
During the 1970s and 1980s, the adversarial legal system was the only process available to assist families in resolving their disputes in most jurisdictions in the United States. Oriented toward determining a winner and a loser, this legal process for resolving divorce and custody disputes focused on proving guilt and innocence as a determinant of outcomes in what was essentially a psychological process of dissolving a troubled marital relationship. It was, and remains, an expensive, emotionally draining, and protracted process. There was increasing concern voiced by judges, legal and mental health professionals, and social scientists about the apparent negative effects of prolonged litigation on families, parenting capacities and communication, and children’s adjustment.
In response to the widespread concerns about the detrimental effects of the adversarial process, and to reduce the exclusive reliance on adversarial proceedings in divorce and custody disputes, several alternative educational, legal, and dispute resolution interventions were developed over the next two decades (Emery, 1994; Katz, 1994; Kelly, 1994, 2002). These ranged from the most widely available and least expensive (divorce education programs), to divorce and custody mediation in the private and public sector, and innovations such as post-mediation and pre-trial settlement conferences.
Divorce mediation was promoted as a viable alternative to the adversarial process for settling separation and divorce disputes, including custody and parenting. Despite opposition from the legal profession and domestic violence advocates for women, and the difficulty of establishing statutes and practice in 50 different states, divorce and custody mediation in both the public and private sector continued to expand. Divorce mediation was promoted as a less time consuming, more cost effective, humane and satisfying method of divorcing than was the traditional adversarial process or litigation. Advocates for mediation stated that mediated agreements would result in better compliance and reduced relitigation. The process was expected to enhance problem-solving skills among the disputants, and promote cooperation and communication regarding children. In addition, mediation was viewed as more empowering and more likely to result in better adjustment of adults and children to the divorce than was likely to occur in the traditional legal system.