Law Commons^™

Judicial Settlement-Seeking In Parenting Disputes: Consensus And Controversy, Noel Semple

Noel Semple

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Judicial Settlement-Seeking In Parenting Disputes: Consensus And Controversy, Noel Semple

Noel Semple

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Mandatory Family Mediation And The Settlement Mission: A Feminist Critique, Noel Semple

Noel Semple

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute. Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation. However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it. Even in the absence of formal …

Accommodating Common Mental Health Issues In Mediation, Rebekah Doley

Rebekah Doley

Mediators have a responsibility to maximise an individual’s ability to effectively participate in the decision-making process, including supporting procedural fairness where equality and balance in the parties’ contributions to the process is expected. Capacity to participate effectively is affected by the presence of mental health concerns.Various means of screening for psychological distress in mediation participants have been discussed, however, there is limited training available to mediators from non-clinical professions in evaluating mental health issues. An alternative approach is to consider ways in which the mediation process could be modified to enhance an individual’s capacity to effectively participate, especially when the …

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Thomas Carbonneau

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.

Child Welfare Mediation In Georgia, Shauna Carmichael

Shauna Carmichael

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Mary F. Radford

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.

Bargaining In The Shadow Of The Best-Interests Standard: The Close Connection Between Substance And Process In Resolving Divorce-Related Parenting Disputes, Jana B. Singer

Jana B. Singer

This essay, written for a Symposium celebrating the child custody scholarship of Professor Robert Mnookin, examines the close connection between changes in substantive child custody doctrine and changes in custody dispute resolution processes over the past 30 years. Part I of the article explores how the widespread adoption of an unmediated “best interest of the child” standard, and the ensuing rejection of the sole custody paradigm, precipitated a shift from adversarial to non-adversarial resolution of divorce-related parenting disputes. Part II of the essay reverses the direction of the analytic lens and considers how the shift from adversarial to non-adversarial dispute …

Re-Inventing The Pyramid: A Process For Teaching And Learning In Mediation Courses, John Wade

John Wade

This article describes an orthodox teaching and learning process known as the pyramid. It sets out how this basic process can be used in mediation (and other) training courses. The variations, advantages, and disadvantages of this learning procedure are described. Analogies are drawn between the pyramid method and mediation. Finally, mediators are challenged to add this process and its variations to their repertoires both as trainers and as mediators.

Duelling Experts In Mediation And Negotiation: How To Respond When Eager Expensive Entrenched Expert Egos Escalate Enmity, John Wade

John Wade

Having dueling experts is a predictable problem for negotiators and mediators. A routine process in response is set out: normalizing, reframing, and turning the barrier into a standard problem-solving question. Twelve standard responses (each with inevitable advantages and disadvantages) are systematized for mediators and negotiators to learn and possibly add value to any negotiation.