Content uploaded by Robert Emery
Author content
All content in this area was uploaded by Robert Emery on Nov 24, 2015
Content may be subject to copyright.
Journal
of
Consulting
Hid
Clinical
Psychology
1987,
Vol.
55,No.
2,
179-186
Copyright
1987
by
the
American
Psychological Association,
Inc.
0022.«XiX/87/$00.75
Child
Custody
Mediation
and
Litigation:
An
Experimental
Evaluation
of the
Experience
of
Parents
Robert
E.
Emery
and
Melissa
M.
Wyer
University
of
Virginia
In
this
study,
40
pairs
of
separated
parents
were
randomly
assigned
to
attempt
to
settle
their
child
custody
dispute
either
in
mediation
or
through
adversary
procedures.
Outcomes
of
the
two
methods
of
dispute
resolution
were
compared
in
regard
to
diversions
from
court,
parents'
evaluations
of the
court
experience,
and
parents'
psychological
adjustment.
It was
found
that
mediation
successfully
diverted
a
significant
number
of
families
from
the
child
custody
hearing
and
that
settlements
were
reached
more
quickly
in
mediation
than
in
litigation.
Fathers
clearly
prefered
mediation,
but
be-
tween-groups
differences
generally
were
not
large
for
mothers.
Some
differences
found
for
mothers
indicated
favorable
effects
of
mediation,
but the
women
who
went
through
litigation
felt
that
they
had
won
more
and
lost
less
relative
to the
mothers
in
mediation.
Mothers
in
litigation
also
tended
to
report
fewer
depressed
feelings
than
did
mothers
in
mediation
or
fathers
in
either
group.
The
custody
mediation
seems
to
have
created
excess
psychological
satisfaction
compared
with
litigation.
However,
most
of the
psychological
benefits
were
experienced
by
fathers
who
were
likely
to
lose
court
custody
battles.
The
current generation
of
young
parents
are as
likely
to di-
vorce
as
they
are to
remain married,
as
fully
49% of
those cou-
ples aged 25-34
in
1980
will
divorce
(Click,
1984).
In
1982,
only
63% of all
children
were
residing with their
two
biological
parents (Select Committee
on
Children,
\fouth,
and
Families
[SCCYF]
of
the
United States House
of
Representatives,
1983),
and the
projection that one-third
of all
children born
in the
1970s
will
experience
a
parental divorce
by the age of
18
may be
an
underestimate
(Furstenberg,
Nord,
Peterson,
&
Zill,
1983).
Although
the
demographics
of
divorce
have
changed,
the
emotional turmoil that accompanies
the
transition remains.
The
process
of
marital
dissolution,
which
begins
well
before
the
legal divorce
and
continues through
an
extended period
of
read-
justment
following
the
formal
proceedings,
is a
time
of
upheaval
for
most parents
and
children (Emery,
Hetherington,
&
Di-
Lalla,
1984).
Anger,
depression,
and
ambivalence about ending
the
marriage
are
emotions commonly experienced
by
parents.
Children
often
are
torn
by
loyalty
dilemmas, saddened
by
sepa-
ration
from
and
loss
of
contact
with
one
parent,
and
anxious
and
uncertain about obtaining stability
in
their
lives.
Disrup-
tions
in
life
circumstances
can add to the
emotional turmoil
if
social support networks
are
split, disposable income
declines,
and
changes
in
residence, employment,
and
schooling
are ne-
cessitated. Although
many,
perhaps most, proceed through
the
divorce
transition
and
attain
a new
equilibrium
in
single-parent
This
research
was
supported
by
grants
to the first
author
from
the
William
T.
Grant
Foundation.
We
would
like
to
thank
Judge
R. P.
Zehler,
Jr.,
N. H.
"Cookie"
Scott,
and
especially
Joanne
A.
Jackson
for
making
it
possible
to
conduct
this
research.
Correspondence
concerning
this
article
should
be
addressed
to
Rob-
ert E.
Emery,
Department
of
Psychology,
Gilmer
Hall,
University
of
Virginia,
Charlottesville,
Virginia
22901.
or
remarried families,
one
outcome
of
this
extended period
of
upheaval
is
that both adults (Bloom,
Asher,
&
White,
1978)
and
children
(Emery,
1982a;
Zill, 1978)
from
divorced
families
are
overrepresented
in
mental health patient populations.
As
the
incidence
of
divorce
has
increased,
the
legal system
has
changed somewhat
to
accommodate
new
social attitudes
and
increasing numbers
of
families
who find
themselves
in
court.
The
most dramatic change
has
been
the
introduction
of
the
no-fault
divorce,
first
enacted into
law in
California
in
1970
and
rapidly adopted
by
every
state,
with
the
exception
of
South
Dakota (Freed
&
Foster,
1984).
Under
no-fault
divorce laws,
neither
party
is
held
responsible
for
the
marital breakdown
and
a
marriage
can be
dissolved
by
agreement.
No-fault
divorce
laws
have
partially
fulfilled
the
goals
of
simplifying
and
remov-
ing
acrimony
from
the
legal divorce
by
encouraging
the
private
ordering
of
marital
dissolution
(Weitzman,
1985).
Still,
dissatis-
faction
with
the
legal
divorce process remains
widespread.
Judges
are
overburdened
by the
sheer number
of
divorce cases
they
must process
(Burger,
1982),
as
over
half
of
all
cases
filed in
trial courts
involve
matrimonial actions (Pearson
&
Thoennes,
1984).
Bound
by
their duty
to
vigorously represent their
clients'
individual
interests,
lawyers
report
finding
themselves
or
oppos-
ing
attorneys taking positions that seem unnecessarily divisive
(Cavanaugh
&
Rhode,
1976;
McHenry,
Herrman,
&
Weber,
1978).
Finally,
the
majority
of
divorced
partners
themselves
re-
port
dissatisfaction
with
their experience
with
the
entire legal
system,
including laws,
judges,
and
lawyers
(Spanier
&
Ander-
son,
1979).
A
particular problem arises
when
a
dispute about
the
custody
of
a
minor child must
be
resolved. Although only about
10%
of
all
divorces result
in a
formal
court hearing
at the
time
of the
marital dissolution,
postdissolution
litigation occurs
in as
many
as
one-third
of
those cases
in
which children
are
involved
(Fos-
179
180
ROBERT
E.
EMERY
AND
MELISSA
M.
WYER
ter &
Freed,
1973).
Child custody determinations
in
these hear-
ings
have been greatly complicated
by the
dominance
of the
"best
interests" standard,
a
vague
directive that impels judges
to
award custody based
on
what
is
likely
to be in the
child's
future
best interests.
Mnookin
(1975)
has
cogently argued that
this
indeterminant
standard
(a)
encourages litigation
by
making
the
outcome
of a
custody hearing uncertain,
(b)
increases acri-
mony
because
virtually
any
derogatory evidence against
one or
the
other parent
may be
deemed
relevant
to the
proceedings,
and (c)
creates
the
potential
for
bias
in the
exercise
of
judicial
discretion because
few
guidelines
are
provided
as to
what
is
likely
to be in the
child's
future
best interests.
Both
legal
and
psychological
perspectives,
therefore,
provide
strong
incentives
for the
exploration
of
alternative methods
of
resolving these
family
disputes. Most notable among these
methods
is
divorce mediation.
In
mediation,
the
divorcing par-
ties
meet together with
an
impartial
third
party
who
works
to
help
them
identify,
negotiate,
and
ultimately resolve their
dis-
putes.
The
mediator accepts
the
parties'
decision
to
dissolve
their marriage
and
does
not
encourage
a
marital reconciliation.
Unlike
the
arbitrator,
the
mediator
has no
authority
to
impose
decisions
on the
parties
or, in
most cases,
to
provide
a
recom-
mendation
to a
judge
should
the
parties proceed
to
court (cf.
Emery
&
Wyer,
1987).
The
mediation alternative
differs
from
the
traditional adver-
sary methods
of
resolving divorce
disputes,
litigation
and
out-
of-court
negotiations between attorneys,
in
that
(a) it is
based
on
an
assumption
of
cooperation rather than competition,
(b)
communication takes place through
a
single individual,
and (c)
the
parties themselves
are in
control
of the
decisions
that
are
made. Mediation
is
similar
to
short-term problem-oriented
psychotherapy
in
that some emotional issues that underlie
the
legal
dispute
can be
explored. However, mediation
differs
from
therapy
in
objective.
In
particular,
the
exploration
and
resolu-
tion
of
problems
related
to the
psychological
aspects
of the di-
vorce
are
limited according
to the
overriding objective
of
nego-
tiating
an
agreement that
is
acceptable
to
both parties
(Kelly,
1983).
By
far the
most common
forum
for
divorce mediation
pres-
ently
available
involves
a
service connected
with
a
family
court.
Mediators
in
these public programs typically
have
advanced
training
in a
mental health profession,
work
only
with
partners
who
have
requested
a
court
hearing,