BACK TO THE FUTURE: AN EMPIRICAL STUDY OF CHILD CUSTODY OUTCOMES

Abstract

As no-fault divorce replaced fault-based divorce in the late 1970’s, proponents of alternative dispute resolution convinced courts and legislatures that mediation promised significant benefits for family law, especially for disputes about child custody. In 1981, states began to respond with statutes requiring the parties to mediate before bringing their custody disputes to the courtroom. The move for mandatory mediation of custody met a firestorm of protest, especially from feminist scholars who warned that mandatory mediation would lead to an increase in the incidence of joint physical custody arrangements. Mediators, warned the critics, would view joint physical custody as the easiest way to reach an agreement between the parents. Fearing the consequences of failing to cooperate, mothers would feel pressure to “agree” to the arrangement, even if they disagreed for legitimate reasons relating to the welfare of the child. Because of the critics and for other reasons, relatively few states passed statutes requiring the mediation of custody disputes. This Article looks at child custody outcomes in a jurisdiction with mandatory mediation of custody disputes—Forsyth County, North Carolina. To test the thesis of mandatory mediation critics, the study analyzes custody outcomes in an entire population of parties involved with the courts in custody disputes in 2002. The data reveals no increase in the incidence of joint physical custody with mediation. To the contrary, mothers received sole physical custody more often in mandatory mediation than they did either in lawyernegotiated settlements or in litigation. On the other hand, the model of mediation used in North Carolina avoided the most serious concerns of mediation opponents: giving mediators the power to make recommendations to the court and excluding lawyers from the mediation process. This study suggests that with certain safeguards in place, mandatory mediation deserves another look as a means to help resolve high conflict custody disputes.