HD41 - Mediation of Child Support, Custody, and Visitation

  • Published: 1988
  • Author: General Assembly. Joint Subcommittee
  • Enabling Authority: House Joint Resolution 246 (Regular Session, 1987)

Executive Summary:
AUTHORITY FOR THE STUDY

House Joint Resolution No. 246, agreed to by the 1987 Session, directs a joint subcommittee to study issues related to the mediation of child support, custody and visitation. The study is to include an investigation of the quality and effectiveness of mediation services in the Commonwealth, availability and coordination of these services, and standards for programs and for education and training of mediators. The joint subcommittee is also directed to consider certain legal issues raised by mediation, including the binding nature of such agreements, confidentiality of information revealed, liability of mediators, and court-ordered participation. The joint subcommittee is to consult with the judiciary, the Bar and existing mediation services in the Commonwealth. The study is to be completed by November 15, 1988, with the submission of an interim report to the 1988 Session of the General Assembly (see Appendix).

INTRODUCTION

Mediation can be defined as the process by which the disputants themselves attempt to reach a mutually satisfactory agreement on issues in dispute with the assistance of a neutral party or parties. It is not intended to be therapeutic; it is goal-oriented, looking toward resolution rather than at causes of conflict. It differs from arbitration in that the resolution is that of the disputants, while arbitration is adjudicatory, with the neutral third party deciding on a binding resolution of the issues.

Mediation was first widely used as an alternative dispute resolution technique in labor-management disputes. It was useful in this arena in which relationships are long term and future cooperation is essential, in contrast to situations in which it may be appropriate to assign fault and designate a winner and loser who will have no future dealings with each other. The use of mediation in domestic relations as an alternative to litigation developed with the advent of no-fault divorce in the early 1970's. In 1985, there were about 300 divorce mediation services in eighteen states. Services were provided by statute or court rule in Alaska, Delaware, Iowa, Maine, Michigan, Oregon and California; mediation is mandatory in California, Delaware and Maine.

MEDIATION IN VIRGINIA

Mediation services are provided in Virginia in a variety of settings. There are nineteen programs offered through court service units, utilizing seventy trained mediators who are probation officers, supervisors, intake officers and family counselors. Judges usually provide referrals to these services. Some courts contract with local departments of social services for mediation. These programs usually focus on custody and visitation matters rather than financial support. Mediation services are also provided by nonprofit programs receiving private, grant or local funding. Clients are referred by the court or by the private bar. Several profit-making programs are also providing mediation services.

The Governor's Commission on Child Support in 1985 recommended mandatory availability of mediation and counseling services throughout the state as a means of reducing separation trauma for children and their parents by promoting parental cooperation and encouraging future compliance with custody, visitation and support arrangements. The recommendation was one of several formulated to approach the ultimate goal of serving the best interests of the child by providing him with nurturing care through access to both parents. The Commission suggested that existing voluntary programs should serve as models for a statewide system.

ACTIVITIES OF THE JOINT SUBCOMMITTEE

The joint subcommittee met three times during 1987. Mediators practicing in a variety of settings described their programs and addressed mediation issues. Mediators appearing before the joint subcommittee included JoAnn Jackson of the Sixteenth District Juvenile Court Service Unit in Charlottesville. Karen Asaro of the Virginia Beach Department of Social Services described her agency's mandatory mediation program, begun in 1980 in cooperation with the local judiciary. Representatives of the Community Mediation Center, a community-supported program in Harrisonburg, described that unique program. Representing private mediation programs, Taswell Hubard described his divorce mediation activities within his law practice in Norfolk, and Emily Brown, licensed clinical social worker and Director of the Divorce and Marital Stress Clinic in Arlington, reviewed the mediation activities of her program and addressed mediation issues. Ms. Brown, chair of the Education Committee for the Academy of Family Mediators, also discussed the issue of training standards for mediators.

The joint subcommittee consulted with the Virginia Mediation Network, organized two years ago as a vehicle for professionals to interact on mediation policies and procedures. The Network now includes 400 members, including attorneys, private practitioners, family therapists, court service workers, and social workers. The Network's resources, particularly its survey of mediation policies and procedures statewide and its national survey of mediation legislation, have assisted the joint subcommittee.

The joint subcommittee invited members of the judiciary to relate their experiences with child custody and support mediation and to comment on mediation issues. Appearing before the joint subcommittee were the Honorable Beverly Bowers of the Rockingham County Juvenile Court, the Honorable Jannene Shannon of the Charlottesville Juvenile Court, and the Honorable Marvin Garner of the Chesterfield Juvenile Court.

The joint subcommittee solicited the comments of members of the Bar. The Virginia State Bar and its Family Law Section and the Virginia Bar Association and its Domestic Relations Committee have been notified of the joint subcommittee's activities. The joint subcommittee heard testimony from Frank Morrison, a Lynchburg attorney with a family law practice. Mr. Morrison serves as a substitute judge in the juvenile court and as commissioner in chancery in Lynchburg and served on the Bar Council's Legal Ethics Committee, on which he participated in the writing of ethical opinions on mediation by attorneys. Mr. Morrison is also trained as a mediator by the Academy of Family Mediators. The joint subcommittee also heard the comments of Mr. Richard Balnave, Professor of Law at the University of Virginia and Director of the Virginia Dispute Resolution Center, supported by the Virginia Bar Association and the Virginia State Bar Joint Committee on Dispute Resolution.

Two couples who mediated their child custody agreements when they divorced shared their experiences with and impressions of mediation with the joint subcommittee.

FINDINGS OF THE JOINT SUBCOMMITTEE

Participants in the mediation process have cited numerous benefits of mediation over litigation in resolving custody, visitation and support issues. Mediation encourages communication between disputants and allows them to reach their own agreements rather than having decisions imposed upon them. Studies have thus found that visitation and support elements of mediated custody agreements are more often complied with than those reached in litigated cases. The Denver Custody Mediation Project found partial or total compliance in 80% of its cases. Dane County, Wisconsin, reported that between 1976 and 1978, 34.3% of families determining custody traditionally returned to the court, while only 10.5% of mediation families returned. A study reported in 1987 by the University of Virginia compared families who were randomly assigned to mediation or to litigation to resolve divorce issues. The study showed that mediation partners reported that at intervals up to a year after settlement their relationship had improved, they were more satisfied with the settlement process and viewed it as fairer, and they believed mediation to be less biased and more suited to the family than adversary procedures. The joint subcommittee received testimony that in Chesterfield County, only about 5% of parties mediating custody returned within one year after entry of the order. The Community Mediation Center in Harrisonburg reported compliance with 90% of the agreements reached in its program after three months.

Mediation's nonadversarial, neutral, future-oriented nature can discourage faultfinding and preserve future relationships. Therefore, parties are better equipped to resolve future disputes themselves. The adjustment of children whose custody is at issue is believed to be enhanced through the promotion of parental cooperation and the reinforcement of parent-child bonds. Mediation allows privacy in reaching an agreement, keeping family issues within the family. At the same time, each discipline is allowed to do what it does best--attorneys representing the parties in mediation can advocate, the mediator can deal with long-term relationships of the parties and the judicial officer can oversee the process and provide a decision should mediation fail.

Mediation may be particularly well-suited to the resolution of child-related divorce issues because of the difficulty in application of the accepted standard of the best interests of the child. The standard is vague and subjective, requiring judges to make difficult predictions and measurements of character. Use of sex-neutral standards rather than the traditional maternal preference standard has further complicated judicial decision-making in child custody cases. Also, judges and attorneys are not necessarily trained to recognize or deal with the psychological aspects of divorce. Mediation can provide an expanded role for experts in this area. Some parents believe that judges' decisions regarding their child's best interests are infused with the judge's own biases and values. The information provided by each participant in the mediation process can assist parents in reaching their own decision and thus one which they believe to be fair.

Cost savings of mediation over litigation have been documented. Two localities in California, where mediation is mandatory, researched outcomes. San Francisco found that from 1977 to 1980, full custody hearings diminished from 275 per year to three per year. No mediated case returned for modification or enforcement. Los Angeles saved more than $280,000 in litigation costs in 1979 and saved $990,000 in 1982. In 1978, a Los Angeles study showed that mediation took about three hours at $20.50 per hour, while the cost of a trial court was $725 per day; each dispute resolved by mediation saved about half a court day. The Denver mediation project in 1980 found that bench time and custody investigations cost the state about $1600 per case, while mediation cost about $135 to $270 per case. The studies showed that awards continued to favor the mother, so results were believed to be substantially the same as those reached by the court.

The joint subcommittee heard testimony from a juvenile court judge suggesting that mediation may decrease the number of CHINS petitions filed because the process returns to parents the power they lose to their children when parents are fighting over child custody.

The Virginia Department for Children recently surveyed seventy-five circuit court judges and seventy-five attorneys in the Family Law Section of the Virginia State Bar, with a 65% response rate. The Department found that 80% of the judicial respondents support the use of mediation in resolving custody disputes and believe that mediation should be made available in all localities in Virginia. Fifty-five percent support statutorily authorizing the court to order mediation in its discretion. The attorneys were open to the concept of mediation, but believed that it should be approached with caution, preserving the discretion of the judge to determine when it will work.

The advantages of mediation were described for the joint subcommittee by two couples who described their experiences with mediation. The couples reported that they reached agreements that they believed were better than arrangements which would have been forged in court, where the judge would only have been marginally acquainted with their families. The couples both started out with some hostility and disagreement on basic issues. They reached agreements that satisfied them and their children, have abided by them, and have resolved subsequent issues themselves.

Problems with mediation have been identified. There is concern that parties may enter into enforceable contracts without full information regarding their legal rights when they are not represented by an attorney other than a mediator. Mediation poses a risk of dominance of one party over the other. Without prescribed training and certification standards for mediators, disputants may retain the services of an incompetent mediator. ·Certain legal ethical issues are raised, such as whether nonattorney mediators are engaged in the unauthorized practice of law, whether attorneys are in violation of proscribed business relations with nonattorney mediators, conflicts of interests for attorneys mediating with two disputing parties, and confidentiality issues. Mediation may not be appropriate· in all custody cases, and its inappropriate use may prolong the divorce process to the detriment of all parties, including children, or lead to harmful agreements.

After several months of study, including review of literature and receipt of testimony from participants in the mediation process, the joint subcommittee has specified a number of important issues raised by the practice in the context of domestic dispute resolution which require consideration and some resolution before it can formulate a responsible proposal regarding use of mediation. These issues are discussed in detail below.