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The Future of Family Dispute Resolution: Mediation as a Piece of the Puzzle

by Peter Salem
March 2015 Peter Salem

“You can't connect the dots looking forward; you can only connect them looking backwards. So you have to trust that the dots will somehow connect in your future.”

                                                                                                – Steve Jobs

Connecting the Dots from the Last Quarter Century

Had I written about the future of family dispute resolution in the late 1980s, when I was a young and enthusiastic child custody mediator working for a Wisconsin family court agency, I would probably have focused exclusively on mediation rather than considering the current broad spectrum of family dispute resolution (FDR) processes that I did not anticipate at the time. I therefore would likely have predicted that in 2015 we would encounter the following scenario:

  • Family mediation would have deeply penetrated the public consciousness and its use would be widespread, whether in the court-connected or private sector context.
  • The same small percentage of cases that go to trial would remain constant but mediation, rather than lawyer-assisted negotiations, would help to resolve most other cases. Mediation would thus have a positive impact on the overall settlement experiences of many litigants who previously had been subject to a more adversarial, law-centered (rather than interest-based) approach, perhaps concluding with the proverbial settlement on the courthouse steps.
  • Mandatory child custody mediation would be nearly universal, with supporting legislation throughout the U.S. and beyond. It would be strongly supported by judges and court administrators who would appreciate the time and cost savings and the enduring settlements that led to a reduction in post-decree filings.
  • Critics of mediation, including some members of the private bar and most advocates for battered women, would agree in 2015 that mediation complemented and benefitted their work as advocates rather than making it more difficult.
  • There would be a robust interdisciplinary community of private divorce mediators offering affordable, accessible services and able to earn a good living.
  • A widely used competency-based certification or licensure program would exist along with improved methods of quality control.
  • A solid body of research literature, including “gold standard” random assignment studies would support the efficacy of mediation.
  • A strong professional association for family mediators would serve the distinct needs and culture of the professional community and play a key leadership role in the development and sustenance of the field.


In some quarters, many of these retrospective predictions have come to fruition (although not necessarily in the way many of us imagined) and some certainly have not. Members of the public generally know that mediation exists, although certainly not in a nuanced way; they cannot distinguish transformative from evaluative from facilitative approaches, nor should we expect them to. Unfortunately, the public also cannot typically differentiate between various FDR options (e.g., mediation, arbitration, parenting coordination) and this represents an opportunity for the field to improve.

Mediation, both court-connected and private practice, is strong in some regions and never gained a foothold in others. However, many court programs have scaled back mediation services in favor of hybrid or evaluative processes that some argue are both more effective and efficient. Sadly, some court programs have been eviscerated by budget cuts and are but a shell of their former selves.

Family mediation legislation plateaued in the early 21st century. Advocates for battered women seem to have stopped actively opposing mediation while addressing broader concerns with family court systems generally. Indeed, the family mediation community deserves great credit for collaborating with advocates and responding to concerns about safety, power imbalances and mediator training. Lawyers, too, appear to have overcome their reticence about mediation, so much so that according to Debra Berman and James Alfini, attorneys have largely taken over the private practice of divorce mediation, which Berman and Alfini believe will likely result in “…a less distinctive dispute resolution alternative and lessened adherence to mediation’s core values, particularly party self-determination” (Berman and Alfini, 2012, p. 923).

While there was a steady stream of research conducted in the 1980s and 1990s, much of it was methodologically weak (Beck and Sales, 2001) and it has waned over the last two decades.  Although there is support in the research literature for mediation generally, commentator Don Saposnek’s observation – that research shows mediation does not work as comprehensively as practitioners had hoped – rings true (Saposnek, 2004).

In sum, the family mediation community in 2015 lacks the strength and cohesion I would have optimistically predicted in 1989. Certification, qualifications and models of mediation continue to provide grist for the mill in some circles, with no real consensus on the horizon. Several jurisdictions and professional organizations have developed their own standards or certification, and some have adopted model standards but none have been (or will likely be) adopted by the entire field. Overall, developments in family mediation have often been piecemeal and the dramatic paradigm shift in our collective approach to conflict (both the public and professional community) seems not to have materialized. Rather, there has been a convergence of approaches, both old and new (see Macfarlane, 2008) that have led to myriad FDR processes including parenting coordination, collaborative divorce, cooperative law, early neutral evaluation, conflict resolution conferences and child custody counseling (formerly recommending mediation in California) to name just a few. The integration of evaluative and even adversarial components into FDR processes represents a serious departure from the vision of early mediators. Some in the family mediation community have embraced these developments while others have eschewed them, treating them as a threat.

The Report of Canada’s Family Justice Working Group (FJWG) of the Action Committee on Access to Justice in Family and Civil Matters (2013) seems to affirm that, in Canada at least, a change in attitude has not been achieved as it cites the incomplete embrace of consensual dispute resolution processes as one of two key factors for a failure to achieve meaningful family justice reform (the other being a lack of resources).

Assessing the Dots: Factors Impacting the Future of Family Dispute Resolution

Although the family justice system has not experienced a true paradigm shift and family mediation has not achieved my predicted widespread embrace, mediation has played a critical role as the catalyst for change, ushering the development of a range of FDR services that assist family members in resolving their disputes. This may be a disappointment to many family mediators, who are firmly committed to the purity of the mediation process. I believe that hybrid FDR processes – many of which integrate mediative strategies with information gathering, evaluative or recommending components – have grown in both the public and private sector because, on the whole, they better meet the needs of the consumers, which include the parties to disputes and courts that provide or refer to various FDR services.

Simply put, FDR is not a one-size-fits-all proposition. It includes but is by no means exclusively mediation. So rather insisting on a process that, for example, is confidential, or one in which mental health neutrals are forbidden from sharing their opinion about developmentally appropriate parenting plans, FDR providers have adapted existing processes, sometimes operating under the name of mediation, sometimes not. (The wide range of processes that fall under the label “mediation” is another discussion entirely, though not unrelated).  Some mediators consider this problematic, but I believe they are missing the big picture. The fact that a greater number of FDR users have opportunities to participate in processes that incorporate the best of what mediation offers (e.g., empowerment, interest based negotiations, creative problem solving) is far more important than the name and procedures of the process.  Because FDR users seem to appreciate these choices it does not seem unreasonable to expect this approach to continue in the years to come.

In attempting to connect the dots that will make up the future, it is worth considering not only the capacity of FDR neutrals to adapt to the needs of the users, but that those needs have changed over time. There are several important factors that have come into play that will be critical to the future of FDR.

An increase in self-represented litigants:  Estimates of between 70-90% of divorces in which where at least one party is unrepresented are not uncommon and legal aid for family law matters that do not involve family violence may be on the verge of extinction. Some people simply cannot afford legal representation. But there are many “middle class divorces” where parties choose to go it alone, getting information from self-help centers, the Internet and elsewhere. The impact on family dispute resolution processes can be significant. While it was at one time common for lawyers to shepherd parents through the legal and mediation process, FDR neutrals may now be the only professional involved. Mediators, who used to ask clients to consult with their attorneys about potential outcomes or settlement opportunities, may have expertise or information that is otherwise not readily available to the client. With many left to fend for themselves in a legal system that is beyond their understanding or expertise, the FDR neutral’s role (and for that matter, the role of the family court judge and the family lawyer) will likely be seen in a different light in the future.

Availability of court-connected services: Funding for public sector programs has often been a challenge, but under the current U.S. political regime (both Democratic and Republican) budget cuts that were once unimaginable have become commonplace. Some programs have been eviscerated, leaving months-long waiting times, overburdened court staff and severe constraints on services and service providers. The impact in many jurisdictions has been increased caseload, staff burnout, and in many courts a shift from processes that focus on party self-determination to recommendation-based settlement. While this trend is by no means universal, these stories are not unusual. Where this will lead is anyone’s guess, but over the last five years in my home state of Wisconsin, political leadership has altered state laws to systematically privatize and/or dismantle government programs that support education, natural resources, business development, citizens with disabilities, and others previously thought to be safe from the chopping block. With many states struggling to balance their budgets, courts are by no means safe and prospects for badly needed increased government support appears dim.

Differentiated case management:  Over the last decade courts have increasingly implemented early screening and differentiated case management systems in an effort to identify the most effective use of services. This approach rejects one-size-fits-all mandatory mediation for all conflicted litigants, in favor of a more individualized approach to family dispute resolution (see, e.g., Salem, Kulak & Deutsch, 2007) and is consistent with the notion of prioritizing the needs of family members over a particular process. Given the need for budget savings and greater efficiency in the courts, this trend is likely to continue.

Intensive Family Interventions: An increase in complex family conflicts (Saposnek, 2004) has been accompanied by the proliferation of intensive interventions designed to address cases involving challenges such as high conflict, estrangement, alienation and intimate partner violence (see, e.g., Sullivan, Ward & Deutsch, 2010). These programs may involve some or all family members, they may take place over a weekend or be multiple days in length in a residential setting, and they may be psycho-educational or therapeutic in nature. Programs are often expensive, although some offer scholarships. Because these cases use such extensive court resources, it is not unreasonable to expect expansion of these services, and perhaps, even with the diminishing public sector funding noted above, limited state support.

Technology: It is impossible to discuss the future of FDR without considering the growth of online dispute resolution (ODR) and what seems to be an inevitable FDR/ODR nexus. While FDR has been profoundly influenced by technology, the fit is not a slam dunk by any means because the general gestalt of ODR simply does not appear to be a natural for the human interactions that are so critical in FDR. That said, technology provides incredible tools that can prevent conflict or support its resolution. For example, there is a computer program that reviews emails between separated parents and highlights potentially inflammatory langue prior to sending them. Cloud-based case management software, online parent education programs and mediation rooms, and programs that facilitate negotiations have all entered the market in recent years. Perhaps most impressive, a seemingly comprehensive program from the Netherlands has been developed that helps parents assess their specific needs (including whether they are ready to divorce) and guides them through processes, professionals and resources. ODR is in its infancy and will only become more sophisticated as time passes. However, technology will not able to manage the relational issues and will thus remain a tool of FDR practitioners rather than putting them entirely out of work.

 

Connecting the Dots of the Future

            Given the factors examined above, I offer the following possibility as one way the dots might connect twenty years from now:

  • A greatly expanded and widely used continuum of FDR services will be developed. Dispute resolution processes will be accurately defined and consistently implemented.  Processes will range from highly facilitative and/or therapeutic on one end to evaluative and advisory on the other. The continuum will include educational programs, facilitative or transformative mediation, parenting coordination, early neutral evaluation, recommending processes and intensive therapeutic interventions.
  • Advances in technology will allow for a parental self-assessment in which parents answer a series of questions and receive feedback on their individual benefits and costs of participating in specific FDR processes. The program will take into account the information provided by both parents prior to making a recommendation and match their needs, interests and concerns. At the conclusion of the assessment, there will be a live consultation (via whatever technology has replaced Skype) with an FDR expert to help parents consider whether the assessment results are consistent with their perceived needs. The consultant will be identified based on the assessment results and will therefore be qualified to address concerns specific to each party.
  • Mediation will continue to occupy a space on the FDR continuum and marketplace, but it may become vulnerable to the growing DIY culture. Divorcing parents who are collaborative and on good terms might previously have engaged a mediator to facilitate the negotiation process and lead them through issues they may not have known to address. In the future, these issues, and reliable resources needed to understand them, will be readily available online. When specific questions arise, the necessary advice will be quickly available from somewhere on the cloud, which will facilitate resolution without the need for professional intervention. This will be a trickle-over effect from ongoing access to justice efforts that will generally make the legal system easier to navigate for laypeople.
  • Discrete task representation, or unbundling legal services, will grow dramatically as a result of the need for affordable legal services and the number of law school graduates who struggle to find employment. This will allow quick, easy and affordable access to legal information for parents involved in FDR processes.
  • A mental health role analogous to unbundled legal services will exist for those who need child-related decision making support. Therapists will offer personalized advice (based on parents’ description or a meeting with a child) about specific family and divorce related issues that enable parents to identify and focus on the needs of their children.
  • FDR professionals will adapt their practices as they work with parents, consulting a dynamic menu of options that responds to the evolving needs of the parties for information, advice, recommendations, mental health or legal consultations as they work their way through the dispute resolution process. Enterprising professionals will form collectives that enable parties to move seamlessly from one process and practitioner to the other if their needs change.
  • Lack of funding for family justice means court service agencies will be repurposed for those with limited means, and processes facilitated by court staff will have access to the online information, and some of discrete services noted above, facilitating the court-connected FDR process.

 

Conclusion           

            While the scenario above seems plausible, given the challenges our family justice systems face it could all just as easily fall apart. I have never been particularly adept at predicting the future and, as noted above, I certainly would have misfired on the last 25 years. That said, for the last two decades, working for the Association of Family and Conciliation Courts, I have occupied a particularly good perch from which to observe the development of FDR, both as it has occurred and retrospectively. So while the specific trajectory is not necessarily clear, there are a few things I can predict with some confidence. One of them is that it will not fall apart.  In addition:

  • There will always be multiple pressures that impact the FDR process for parties to the disputes, service providers and related institutions, such as courts or community based agencies. There will be financial constraints, emotional and psychological challenges, time pressures and simple and straightforward differences in values and opinion. No one place, person or process will serve as magic bullet for all of them.
  • There will continue to be a deeply committed cadre of professionals who dedicate enormous time and energy working toward expanding and improving the family dispute resolution process. They will have different values and ideas, so their vision of the future (and sometimes of the present) will not always align, and that will be a good thing.
  • The different values and ideas of FDR professionals, while creating some friction along the way, will foster a continually evolving set of FDR practices that first and foremost meet the needs the family members and children that we are here to serve.

The opinions expressed in this essay are those of the author and do not reflect the views of the Association of Family and Conciliation Courts.

 

References

Beck, C. J. A., & Sales, B. D. (2001). Family mediation: Facts, myths, and future prospects. Washington, DC: American Psychological Association

Berman, D., & Alfini, J. (2012) Lawyer colonization of family mediation: Consequences and implications. Marquette Law Review, 95, 887-925.

Family Justice Working Group (2013). Meaningful change for family justice: Beyond wise words. Toronto, Canada: Action Committee on Access to Justice in Family and Civil Matters.

Macfarlane, J. (2008). The new lawyer: How settlement is transforming the practice of law. Vancouver, Canada: UBC Press.

Salem, P., Kulak, D., & Deutsch, R. M. (2007). Triaging family court services: The Connecticut Judicial Branch’s family civil intake screen. Pace Law Review, 27, 741–783

Saposnek, D. T. (2004). Commentary: The future of the history of family mediation research. Conflict Resolution Quarterly, 22, 37–53

Sullivan, M., Ward, P., & Deutsch, R. (2010). Overcoming Barriers family camp: A program for high-conflict divorced parents where a child is resisting contact with a parent.  Family Court Review, 48, 116-135.

 

Biography


Peter Salem has served as executive director of the Association of Family and Conciliation Courts since 2002 and as associate director from 1994-2002. He was a William T. Grant Foundation Distinguished Fellow (2009-2012), working with the Arizona State University Center for Prevention Research to promote effective use of high quality social science in family law. Mr. Salem taught mediation at Marquette Law School and was mediator and director of Mediation Family Court Services in Rock County Wisconsin.  He has conducted training and technical assistance for family court service agencies throughout the United States for the last 20 years and has spearheaded several family court reform initiatives. He is co-editor of the book Divorce and Family Mediation: Models, Techniques and Applications (Guilford, 2004) and was the recipient of the Association for Conflict Resolution’s John Haynes Distinguished Mediator Award in 2008. 



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Additional articles by Peter Salem

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