Child Custody Mediation and Litigation: An ...

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 between-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-

or remarried families, one outcome of this extended period of upheaval is that both adults (Bloom, Asher, & White, 1978) and

vorce as they are to remain married, as fully 49% of those couples 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

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

[SCCYF] of the United States House of Representatives, 1983),

has changed somewhat to accommodate new social attitudes

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

and increasing numbers of families who find themselves in

an underestimate (Furstenberg, Nord, Peterson, & Zill, 1983).

the no-fault divorce, first enacted into law in California in 1970

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-

and rapidly adopted by every state, with the exception of South

court. The most dramatic change has been the introduction of

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-

justment following the formal proceedings, is a time of upheaval for most parents and children (Emery, Hetherington, & Di-

ing acrimony from the legal divorce by encouraging the private

Lalla, 1984). Anger, depression, and ambivalence about ending

ordering of marital dissolution (Weitzman, 1985). Still, dissatis-

the marriage are emotions commonly experienced by parents.

faction with the legal divorce process remains widespread.

Children often are torn by loyalty dilemmas, saddened by sepa-

Judges are overburdened by the sheer number of divorce cases

ration from and loss of contact with one parent, and anxious

they must process (Burger, 1982), as over half of all cases filed in

and uncertain about obtaining stability in their lives. Disruptions in life circumstances can add to the emotional turmoil if

trial courts involve matrimonial actions (Pearson & Thoennes, 1984). Bound by their duty to vigorously represent their clients'

social support networks are split, disposable income declines,

individual interests, lawyers report finding themselves or oppos-

and changes in residence, employment, and schooling are necessitated. Although many, perhaps most, proceed through the

ing attorneys taking positions that seem unnecessarily divisive (Cavanaugh & Rhode, 1976; McHenry, Herrman, & Weber,

divorce transition and attain a new equilibrium in single-parent

1978). Finally, the majority of divorced partners themselves report dissatisfaction with their experience with the entire legal system, including laws, judges, and lawyers (Spanier & Ander-

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 Robert E. Emery, Department of Psychology, Gilmer Hall, University of Virginia, Charlottesville, Virginia 22901.

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-

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ROBERT E. EMERY AND MELISSA M. WYER

ter & Freed, 1973). Child custody determinations in these hearings 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 acrimony 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 parties meet together with an impartial third party who works to help them identify, negotiate, and ultimately resolve their disputes. 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 recommendation to a judge should the parties proceed to court (cf. Emery & Wyer, 1987). The mediation alternative differs from the traditional adversary methods of resolving divorce disputes, litigation and outof-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 resolution of problems related to the psychological aspects of the divorce are limited according to the overriding objective of negotiating an agreement that is acceptable to both parties (Kelly, 1983). By far the most common forum for divorce mediation presently 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, and limit negotiations to child custody or visitation disputes, leaving financial issues to be resolved through the adversary process (Pearson, Ring, & Milne, 1983). Most notable among the court-based mediation programs are those that exist in California. Since January 1, 1981, California law has mandated that all parents who petition the court for a custody or visitation hearing must first attempt to resolve their disputes in mediation (California Civil Code, 1981). To this point, divorce mediation has captured considerable public and professional interest and has generated much heated controversy, but it has been the focus of relatively little systematic research (Emery & Wyer, 1987). This is unfortunate because many of the major controversies surrounding mediation can be framed as straightforward hypotheses. Some of the most important controversies include: Are a significant proportion of

cases diverted from the custody hearing as a result of mediation? Do parents perceive mediation differently from litigation on such dimensions as fairness, control, and psychological impact? Does mediation significantly influence the parents' postdivorce relationship and their individual psychological states, which, in turn, may result in improved adjustment among their children? The first two of these questions are being addressed in the largest investigation of custody mediation to date, the Denver Mediation Project (Pearson & Thoennes, 1984). In this investigation, divorcing couples referred to the program were randomly either offered mediation or assigned to a litigation control group. Numerous results have been reported from this project (Pearson & Thoennes, 1984), and we have reviewed them in detail elsewhere (Emery & Wyer, in press). Overall, the pattern of the findings appears to be strongly supportive of mediation. It has been found to be successful in diverting a number of custody cases from court, to be perceived as a more satisfying experience by parents and, at least in the short-term, to lead to a reduced rate of subsequent litigation (Pearson & Thoennes, 1984). We have undertaken a similar experimental evaluation of the impact of mediation and litigation for a number of reasons. First, replication of research of such social significance seems not only justifiable but necessary before any policy conclusions can be said to have empirical support. Second, important questions about the broader psychological impact of mediation versus litigation, both on parents and children, were not a focus of the Denver Mediation Project. Finally, serious methodological concerns that are exceedingly difficult to control in field research formed a rationale for the present investigation. Among the central methodological problems in the widely cited Denver Mediation Project were questions about (a) self-selection in the process of random assignment because 50% of those couples offered mediation refused to participate and evidence indicated that those were the more acrimonious couples (Pearson, Thoennes, & VanderKooi, 1982); (b) the plan of analysis in which the litigation group as a whole was compared with two different mediation groups (those who did and those who did not reach an agreement in mediation); and (c) the failure to report results separately for mothers and fathers. In the following article we summarize findings on the first 40 families who participated in our own experimental investigation comparing court-based mediation and litigation. The present focus is on the impact of the two alternative methods on parents. For reasons already discussed, the two groups of parents were compared on frequency of reaching an out-of-court settlement; speed with which agreements were made; parents' satisfaction with the process and outcome of the dispute resolution procedure; and parents' perceptions of the impact of the procedure on themselves, their children, and their relationship with their former spouse. In addition, parents' ratings on three measures of more general postdivorce functioning were assessed: conflict in the coparental relationship, longing for one's former spouse, and depression. These particular domains were chosen both because they are frequent areas of distress for recently divorced adults (Bloom et al., 1978; Emery et al., 1984) and because some of our clinical hypotheses about mediation

CHILD CUSTODY MEDIATION AND LITIGATION suggested that the intervention would have a positive impact in these areas (Emery, Shaw, & Jackson, in press).

Methods Subjects Twenty mediation families and 20 litigation families were recruited from those parties requesting a child custody or visitation hearing from a juvenile and domestic relations district court in central Virginia. The average age for mothers was 27 years (range = 18-45) and for fathers, 30 years (range = 20-42). Whites comprised 82% of the sample and blacks comprised the remainder. Reflecting the court's population of clients, the sample was largely of low socioeconomic status. Eighty percent of the men and 85% of the women were working or had last worked in clerical or blue collar occupations, and 10% of the men and 20% of the women were currently unemployed. Average reported annual income for the men was approximately $9,000 (range = $0-$20,000) and for women, approximately $7,000 (range = $0-$ 17,000). Sixty-five percent of the men and women had only a high school education or less. Most families were from Protestant religious backgrounds. More litigation than mediation mothers reported being Protestant \\2, N = 40) = 7.77, p < .05, but no differences were found between groups on any other demographic variables.

Procedure Families were randomly assigned either to mediate or to litigate their custody dispute. However, ethical and practical issues posed a number of challenges to maintaining the internal validity of the investigation. Because of such concerns, disputants were not approached about the study if they were not the child's biological parents, if there were concurrent allegations of child abuse or neglect, or if the wife had been a resident at a shelter for battered women. Moreover, ethical constraints prohibited us from ordering families to participate either in mediation or in the litigation control group. Rather, at the time of the court intake hearing, families were approached at random about either attempting to resolve their dispute in the court's new mediation program or participating in an evaluation of the court's services (litigation control group). Twenty of the first 23 families approached about mediation agreed to participate, as did 20 of the first 25 control families. Demographic data were collected on all families before they were approached about the study and, except for significantly lower income for the 3 mothers who refused mediation, ((22) - 5.56, p < .001, no differences were found between those who refused and those who agreed to participate in either group. In addition, no differences were found in the archival court record data for the two groups (e.g., number of prior court contacts). Thus, as far as we were able to detect, the experimental manipulation was remarkably unbiased. Following assignment to groups, families either proceeded through the usual court process or entered the mediation service. The type of negotiations that typically took place in mediation have been described in detail elsewhere (Emery et al., in press). All mediation sessions were held inside the court building. Meetings were conducted by one of four pairs of male and female co-mediators, all of whom had at least a masters degree in a mental health field in addition to training in mediation. Mediation was limited to no more than six 2-hr sessions. Study families completed mediation after an average of 2.4 meetings, with a minimum of 1 and a maximum of 5 meetings. After parents had ended mediation (with or without an agreement), settled their disputes outside of court, or had a decision rendered in a court hearing, they were interviewed individually in their own home by a member of the research staff. Interviews took place an average of 3.7

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weeks following the resolution of the dispute. The earliest interviews were completed 1 week and the latest were completed 16 weeks following the decision. Over 80% were completed within 5 weeks. Families were compensated for their participation in the 2-hr interview. Because interviewers encountered more difficulty enlisting the cooperation of litigation subjects, parents in this group were paid 50% more for their participation in the study. This may be interpreted informally as an initial between groups difference in the outcome of the two interventions.

Measures Demographic data were obtained at the time of the initial court contact, and archival data were obtained from court records. At the time of the home interview, the following measures were used. Structured interview. This form was designed specifically for the present study to evaluate parents' experiences in mediation and in litigation. Parents were asked to rate their court experience on a 5-point scale. Questions were worded so that identical items could be used for members of each group. Examples of items include "In your contact with the court, do you feel that your rights were protected?" and "In your contact with the court, do you feel that you had control over the decisions that were made?" These questions were answered according to the following scale: I = not al all, 2 = a little, 3 = somewhat, 4 = quite a bit, and 5 = very much. A listing of the items can be found in Tables 1, 2, and 3. Acrimony Scale (AS). The AS measures conflict in the coparental relationship between separated or divorced parents. Parents rate the degree of conflict they have in 25 areas of potential problems, for example, visitation, gifts, and discipline. A single total score, which is the mean of the 25 items, is obtained. The measure has been found to be internally consistent (alpha - .88) and to have high test-retestreliability(r = .88) over a 6-week period (Emery, 1982b). Evidence has also indicated that the AS is correlated with measures of children's behavioral adjustment (Emery, 1982b; Shaw & Emery, in press). Acceptance of Marital Termination (AMT). The AMT is an 11-item self-report scale that taps a range of feelings about marital termination, including disbelief, regret, preoccupation with the former spouse, and guilt (Kitson, 1982; Thompson & Spanier, 1983). An acceptance score is obtained by computing a mean of the items. The measure has been found to be internally consistent (alpha = .90), and lack of commitment to the marriage was found to be related to scores on the AMT (Thompson & Spanier, 1983). Beck Depression Inventory (BDI). The BDI is a 21-item inventory that assesses affective, cognitive, and behavioral components of depressive states (Beck, Ward, Mendelson, Mock, & Erbaugh, 1961). One score is derived, which is the sum of the items. Split-half reliability of the measure is high (r = .S6-.93). Although its capacity to reflect clinical depression has been questioned (e.g., Sacco, 1981), its ability to measure transient demoralization attests to its validity (Reynolds & Gould, 1981).

Results Three distinct issues were examined in comparing the two groups. First, we analyzed a highly relevant behavioral outcome: the number of cases that proceeded to a custody hearing. Second, the satisfaction ratings for mothers and fathers in the two groups were compared. Finally, the impact of the dispute resolution procedures on the broader psychological variables measuring conflict over copaienting, acceptance of the marital termination, and depression was analyzed.

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Table 1 Means and Standard Deviations for Fathers' Postintervention Interviews Mediation (N = 17) Item

M

SD

Litigation (N = 17)

M

SD

Court process (df= 1,27) Satisfied with court's role Satisfied with own role Satisfied fairness of decisions Feel had control over decisions Feel rights were protected Knew about available options

3.6 3.7 4.0 2.9 3.9 3.7

.3 .3 .9 .5 .2 .4

2.4 3.5 3.1 2.0 2.5 3.0

1.5 1.3 1.3 1.3 1.2 1.5

Court outcome (df= 1, 29) Satisfied with decisions Lost what you wanted Won what you wanted Reached a lasting agreement

3.9 2.2 2.5 3.2

.1 .3 .5 .3

3.1 2.9 2.2 2.7

1.5 1.9 1.8 1.8

Impact on self(rf/= 1,29) Feelings were understood Concern was shown for you Court had bad effect on you Court had good effect on you

3.8 3.4 2.3 2.8

.1 .5 .5 .6

2.5 2.1 2.7 1.5

1.3 1.1 1.4 1.0

Impact on children (df= 1, 30) Concern was shown for kids Court had bad effect on kids Court had good effect on kids

4.5 1.8 2.6

.0 .3 .5

3.6 2.3 1.9

1.3 1.3 1.3

Impact on relationship with children's mother (df= 1,31) Caused problems with spouse Settled problems with spouse

1.9 2.9

.1 .1

3.2 2.1

1.7 1.4

2.00* 6.48"