Burdening access to justice: The cost of divorce mediation on the cheap

St. John's Law Review, Spring 1999 by King, Carol J

INTRODUCTION

Without question, public funding for court services rarely meets all the needs of the justice system.1 Case filings have increased dramatically in many courts in the past ten to twenty years.2 In some courts, particularly in state courts, increases in the criminal docket have forced significant delays in processing civil cases.3 The perception that there are undue delays has generated pressure to take cases out of the trial system. Many courts have instituted alternative dispute resolution methods such as mediation, court-annexed arbitration, early neutral evaluation, and summary jury trials in order to speed up case resolution.4 The desire for expanded court-related services comes at a time of strong public resistance to increased taxes and public spending. This has created tension for court reformers due to the fact that expanded services require additional funds. Some programs have been designed to resolve this tension by shifting costs of new services to users of the courts. These programs, however, create new problems concerning equal and fair access to both the courts and to the alternative methods the courts wish to promote.

The speed of case processing and docket control are not the only motivations behind the growing impetus to divert cases from the litigation track to alternative dispute resolution. The quality, not just the quantity, of justice delivered by trial alternatives is also important to policy makers. There is some evidence that the quality delivered by alternative conflict resolution programs has been more than satisfactory. Mainly, research studies show that participant satisfaction with alternatives is usually high,5 and that parties generally perceive the process and outcomes as fair.6

In the family law area, especially in cases involving children, many judges, advocates, and commentators share concerns that the adversarial system can be counterproductive, frustrating rather than advancing the real needs of the parties.7 The adversary system works by emphasizing the differences between the litigants, and by advancing each litigant's wishes by attacking the merits of the other's position. In order to work as designed, divorce litigation actually polarizes the divorcing couple. After trial the adversaries need to rebuild their relationship so as to remain partners and parents to their children. This goal is unlikely to be achieved in a system that operates on the general assumption that the trial court judgment actually ends the case, and also ends the relationship between the disputants, when in fact it does neither.

In light of studies indicating that high levels of interparental hostility are associated with poorer emotional adjustment of the children of divorce,8 policy makers have encouraged parents to try mediation to resolve conflicts over children, especially in cases involving custody and visitation.9 Because mediation facilitates open communication, it has the potential to help parties resolve underlying issues and deal with emotions that arise in litigation and negotiations.10 The hope held by proponents of child-custody mediation is that parents will learn to cooperate with each other, resulting in decreased hostility, thereby improving the psychological adjustment of children post-divorce.11

Custody law is both ambiguous and fact specific. The court is directed to place the child with the parent who will best serve the child's needs under the prevalent "best interest" standard.12 In reality, determining placement is rarely an easy decision.13 The judge may seek the expertise of a psychologist or psychiatrist to aid in forming the judge's decision, but different professionals looking at the same set of facts frequently arrive at different conclusions, leading to the classic "battle of the experts."14 While passions run high in many domestic relations cases, emotions are particularly intense in disputes over children. Thus, diverting child-related disputes to mediation could also serve the court's interest of avoiding the trackless swamp of the contested custody case.

Obviously, expanded court services require additional funding. Given the widespread public resistance to the suggestion of spending tax dollars to improve the system, courts have been forced to come up with creative ways of encouraging litigants to try alternative methods of dispute resolution, without creating additional costs for the courts.15 Further, despite the generally favorable reaction disputants have to family mediation, and the perceived advantages to children, voluntary use of mediation is low.16 Courts have, therefore, employed varying levels of encouragement or coercion in an attempt to divert parties from the trial courts into mediation.17

In the family law context, courts have developed several approaches to institutionalizing mediation. For example, some courts have established and funded court-annexed mediation programs which are staffed by court employees and provide mediation services to at least some divorcing couples at no charge.18 Usually, these programs focus on disputes involving children, leaving financial issues for resolution through the more traditional means of attorney negotiation, direct party negotiation, or adjudication.19 In addition, court-annexed mediation programs often include parties to post-divorce conflicts over the children, such as disputes over modification of pre-existing custody or visitation orders.20