How Has Mandatory Mediation Fared?: Research Findings of The First Year's Follow‐up*

• Date: 01 December 1984
• Published date: 01 December 1984
• Author: Joanna Hamburg,Claire D. Delano,Hila Michaelsen,Donald T. Saposnek
• DOI: http://doi.org/10.1111/j.174-1617.1984.tb00095.x

How

Has Mandatory Mediation Fared?: Research Findings

of

The

First Year’s

FOIIOW-UP*

Donald

T.

Saposnek, Joanna Hamburg, Claire

D.

Delano and Hila Michaelsen**

The benefits of mediation approaches, in

contrast to adversarial approaches, for resolving

custody and visitation disputes have been

widely acknowledged by various investigations

published

in

the recent literature. These include

a lower relitigation rate (Milne, 1978; Bahr, 1981;

Pearson

&

Thoennes, 1982b), monetary savings

to both the clients and the public (Bahr, 1981;

Mclsaac, 1981; Folberg, 1981; Pearson

&

Thoennes, 1982b), greater satisfaction and

compliance with the outcome, improved pa-

rental relations, and increased frequency of the

children’s contact with both parents on a regular

basis (Pearson

&

Thoennes, 1982b). However,

the data of these various investigations are

based on outcomes of

voluntary

mediation (both

private and court-based), in which disputing

parents were offered mediation as an alternative

to the traditional adversarial approach, and were

free

to

decline the offer and choose litigation

instead.

In contrast, the present study was con-

ducted on involuntary clients, ordered to media-

tion under California’s mandatory mediation law

(Civil Code

4607).

This innovative law, enacted

January 1,1981, modified family law procedures

by requiring all divorced or divorcing couples

with children who have disputes over custody or

visitation matters to attend mediation before

being allowed a court hearing on the matter. The

various counties in California implemented this

law by local rule. Some counties encompassed

the mandatory mediation into their pre-existent

family conciliation courts, some counties hired

*Portions

of

this paper were presented at the Annual

Convention

of

the American Orthopsychiatric Associa-

tion, Boston, Mass., April

4-8,1983.

**Donald

T.

Saposnek, Ph.D. is a Clinical-Child Psy-

chologist affiliated with Family Mediation Service

of

Santa Cruz and with the University

of

California, Santa

Cruz. Joanna Hamburg, MFCC

is

a Marriage, Family,

and

Child Counselor, and Claire D. Delano, L.C.S.W. and

Hila Michaelsen, L.C.S.W. are both Clinical Social Work-

ers, and are all affiliated with Family Mediation Service

of

Santa Cruz, California.

court counselors for the mediation function

alone, and some counties contracted the medi-

ation services to private therapists in the com-

munity. Regardless of the style of implementa-

tion, mediators in California working under this

law have regularly dealt with resistant clients

who have not wanted to be

in

mediation, provid-

ing a considerable challenge to the mediators.

The mandatory mediation law was enacted

on the belief that the benefits which accrue from

voluntary mediation could also be enjoyed by

involuntary mediation. However, systematic in-

vestigations of outcomes of mandatory media-

tion have not as yet been reported

in

the litera-

ture. The present investigation explored the out-

comes of mandatory mediation cases eight

to

sixteen months following the successful com-

pletion of a mediation agreement.

Methodology

The research population for this investiga-

tion consisted of the 148 cases referred to the

Family Mediation Service

of

Santa Cruz during

the year 1981 (January through December).

Al-

most all

of

these cases were ordered directly to

mediation by the Santa Cruz County Superior

Court after a court hearing for determination of

custody within a dissolution proceeding, or for

modification

of

pre-existing custody and/or visi-

tation orders. Several

of

the cases were referred

by attorney stipulations prior to a court hearing.

(This option has been increasingly exercised by

attorneys, since court hearings prior to media-

tion frequently are economically and temporally

wasteful, under California’s mandatory media-

tion law.) It should be noted, though, that even

when attorneys stipulated to mediation prior to a

court hearing, the spouses were almost always

attending involuntarily, on the advice, and

sometimes forceful persuasion, of their attor-

neys.

In Santa Cruz County, all child custody and

visitation disputes are referred to the Family

Mediation Service, an association of five experi-

enced family therapists

(3

women and

2

men) in

7

CONCILIATION

COURTS

REVIEWIVOLUME

22,

NUMBER S/DECEMBER

1984

,