DISPUTE RESOLUTION AND THE POSTDIVORCE FAMILY: IMPLICATIONS OF A PARADIGM SHIFT1

• Published date: 01 July 2009
• Date: 01 July 2009
• Author: Jana B. Singer
• DOI: http://doi.org/10.1111/j.1744-1617.2009.01261.x

DISPUTE RESOLUTION ANDTHE POSTDIVORCE FAMILY:

IMPLICATIONS OFA PARADIGM SHIFT1

Jana B. Singer

Over the past two decades, there has been a paradigm shift in the way the legal system handles most family

disputes—particularly disputes involving children. This paradigm shift has replaced the conventional model of

adjudication with a more collaborative, interdisciplinary, and forward-looking familydispute resolution regime.

It has also transformed the practice of family law and fundamentally altered the wayin which disputing families

interact with the legal system.This essay examines the elements of this paradigm shift in family dispute resolution

and explores the opportunities and challenges it offers for families, children, and the legal system.

Keywords: Family law;family courts;mediation;alternative dispute resolution;joint custody;therapeutic

jurisprudence

Over the past two decades, there has been a paradigm shift in the way the legal system

handles most family disputes—particularly disputes involving children.This paradigm

shift has replaced the law-oriented and judge-focused adversary model with a more col-

laborative, interdisciplinary, and forward-looking family dispute resolution regime. It has

also transformed the practice of family law and fundamentally altered the way in which

disputing families interact with the legal system. Although this “velvet revolution” in

family conflict resolution offers many potential benefits for children and for parents, it also

poses a number of challenges—both for families and for the judicial system. In this essay,

I describe the contours of this paradigm shift and explain why I think it may be a

double-edged sword.fcre_1261363..370

ELEMENTS OF THE PARADIGM SHIFT

The paradigm shift in family dispute resolution encompasses a number of related

components. The first component is a profound skepticism about the value of traditional

adversary procedures. An overriding theme of recent divorce reform efforts is that adver-

sary processes are ill suited for resolving disputes involving children.2Relatedly, social

science suggests that children’s adjustment to divorce and separation depends significantly

on their parents’ behavior during and after the separation process: the higher the levels of

parental conflict to which children are exposed, the more negative the effects of family

dissolution.3Armed with these social science findings, academics and court reformers have

argued that family courts should abandon the adversary paradigm, in favor of approaches

that help parents manage their conflict and encourage them to develop positive postdivorce

co-parenting relationships.4

Correspondence: jsinger@law.umaryland.edu

FAMILY COURT REVIEW,Vol. 47 No. 3, July 2009 363–370

© 2009 Association of Familyand Conciliation Cour ts