Building Bridges

Background (continued)

How does the divorce process itself make a difference?
Reviewing studies published in the past decade, Kelly (15) has documented the benefits of divorce mediation and other alternatives to adversarial procedures for ending marriages.

The divorce mediation process involves having a mediator work with both parents for the purpose of helping them formulate a marital dissolution agreement. The divorce litigation process involves having one or more attorneys for each parent work at negotiating an agreement, preparing, simultaneously, to carry the matter to court for a judge to mandate an agreement if negotiations fail.

In an outcome study of parents randomly assigned to a mediation process or to an adversarial process, those in the "mediation" group were significantly more likely to reach agreement without a court hearing than those in the adversarial group. In other studies, mediation (compared to litigation) resulted in higher rates of parental satisfaction, higher rates of compliance with agreements, lower costs in time and money, and lower rates of subsequent litigation.

Increasingly, family court judges are calling for an end to the routine use of litigation in divorce proceedings. Increasingly, state justice departments are providing families with detailed guidelines for their own use in developing parenting plans and the other components of marital dissolution agreements. Increasingly, state legislatures are mandating parent education programs for divorcing parents, programs that are designed to focus parental attention on their roles as parents rather than adversaries.

In September, 2000, the Family Law Section of the American Bar Association conducted a major international, interdisciplinary conference to develop new models for protecting the well-being of children of high-conflict divorcing and divorced families. Chaired by Linda Elrod, Distinguished Professor of Law at Washburn University and chair of the ABA's Family Law Section, and supported by the Johnson Foundation, the conference was held at Frank Lloyd Wright's house, Wingspread, in Racine Wisconsin. The conference has become identified the Wingspread Conference, and its report as the Wingspread Report and Action Plan (28). The conference identified mental health professionals, lawyers, and judges as having the greatest power to influence the conduct of high-conflict custody cases and concluded that they should bear the primary responsibility for preventing or reducing conflict in high-conflict cases. The opening lines of the three major sections of the conference report read as follows:

Basic principle: Mental health professionals should take a proactive role in developing a community that supports responsible, healthy parenting and in developing resources and abilities to meet the needs of separating, never married, and divorced families.

Basic principle: Lawyers should take a proactive role in reducing conflict between disputing parents and promoting collaborative problem solving with parents, mental health professionals, and the court.

Basic principle: Courts should proactively seek ways of helping parents in a custody dispute protect or restore healthy relationships with their children and develop mechanisms for resolving disputes with each other in a timely manner in the best interests of the children.

Currently, some 40 percent of divorces are completed without attorney involvement. Some family law attorneys, with special training, are beginning to provide non-adversarial professional services. Example: mediation, as described above. Example: collaborative divorce practice, in which the parents and their attorneys agree to work together with other professionals to create a divorce agreement, and agree that the participating attorneys will not represent their clients in the courtroom if the collaborative work does not result in agreement. Example: unbundling of legal services, in which attorneys provide information to their clients or perform specific tasks for them on a consultant fee basis, without taking on the responsibility of adversarial representation with its ethical obligation of "zealous advocacy".

7. Which of these is not an alternative to adversarial processes for ending marriages?

a. collaborative divorce practice
b. mediation
c. unbundling of legal services
d. attorney representation before a judge

Next >>