“We make new families:” findings from a family court mediation study

• Published date: 01 July 2022
• Author: Alexandra Crampton
• Date: 01 July 2022
• DOI: http://doi.org/10.1111/fcre.12663

ARTICLE

“We make new families:”findings from a family

court mediation study

Alexandra Crampton

Department of Social and Cultural Sciences,

Marquette University, Milwaukee,

Wisconsin, USA

Correspondence

Alexandra Crampton, Marquette University,

#340 Lalumiere Hall 1310 W. Clybourne

Street Milwaukee, WI 53233, USA.

Email: alexandra.crampton@marquette.edu

Abstract

Mediation was brought into family court cases as a divorce

litigation alternative. Today, parents are not only encour-

aged but mandated across most U.S. states to consider

mediation before further court action can be taken.

Research has not kept up with understanding how publicly

mandated and subsidized mediation services become part

of court cases and possible case resolution. This article

reviews how mediation has evolved from outside alterna-

tive to family court “workhorse”within a family dispute

resolution paradigm centered on shared parenting as in the

best interest of children. Research results from a family

court mediation program are presented to highlight how

parents encountered and responded to mediation as an

embedded part of today's family dispute resolution para-

digm/court system. Especially in cases that keep coming

back to court, family dispute resolution has become a

means of “making family”as much as supporting family

separation. Implications for practice include limitations of

a mediation service as provided in an under-resourced

court and ultimate reliance upon parents to uphold the

best interest standard through ongoing co-parenting

interactions.

KEYWORDS

child custody mediation, court services, family court mediation,

family dispute resolution, family law paradigm, mediation

research

DOI: 10.1111/fcre.12663

© 2022 Association of Family and Conciliation Courts.

Family Court Rev. 2022;60:391–410. wileyonlinelibrary.com/journal/fcre 391

Key points for the family court community

•Mediation was brought into family law to as a divorce lit-

igation alternative in the wake of “no-fault”family law

reforms in the 1970s and 1980s.

•The evidence base for mandated mediation in child custody

cases continues to lie primarily from studies of divorce

cases and of mediation as divorce litigation alternative.

However, divorce is only one reason why today's litigants

file child custody cases.

•This study provides empirical data on how today's par-

ents engage in mandated mediation services through

focus in one U.S. family court program.

•This article calls for an updated research paradigm in

which mandated mediation provides more than a litiga-

tion alternative and, in some cases, becomes a means

through which the state is “making family”through

pressuring parents to share parenting responsibilities.

As the saying goes, breaking up is hard to do. As family court professionals know all too well, it is evenharder when

children are involved. Prior to the “no-fault”divorce reform, divorces requiredan adversarial process in which children

could become collaterally damaged. Thiswas well depicted in the 1979 movie, Kramer vs. Kramer (Benton, 1979), in

which the well-being of little Billy hangs inthe balance of a contested child custody trial. Each parent must take the

stand against the other in defense of their claims and make a counter-argument to that of the other. Although the

mother wins full custody from the court, she realizespost-judgment that this was wrong. In a tearfulending, she goes

to the father fora private meeting. This time, theyare focused on what is best for Billy.Although critics have noted the

fictionalized aspects of the movie, the underlying questions it raised were of both public and professional concern

about divorce;that it unnecessarily pittedeach parent against the other at theexpense of their children.

Mediation was introduced into family court to help address this concern. Pilot projects and experimental

research identified howmediation can provide an alternative to the hostilities of an adversarial trial,and poten-

tially transform litigation into a private deliberation between parents (Emery, 2011; Kelly, 2004;Shaw,2010). Over

time, court-based mediation services have become a core part of what Jane Murphy and Jana Singer describe as

the “new family dispute resolution paradigm”(Singer, 2009; Murphy & Singer, 2015). In this paradigm, feuding

couples are encouraged to lay down their swords and instead sit at the conference table of deliberation. Their

potential child custody battle is reframed as a joint problem of co-parenting.Once seated, parties are directed

away from fighting over the ir rights to the same child(ren) and towards wor king together, on the same side. Media-

tion has become the “workhorse”(pp. 662, Van der Steegh, 2008) of this paradigm. Fami ly law reforms mandating

mediation for child custody disputes have helped to transform a past innovation and experiment into a required

part of the family law process. At the same time, the adversarial trial remains asa “judicial backstop”(Murphy &

Singer, 2015): If mediation and/or other forms of “alternative dispute resolution”(ADR) fail, parents as litigants

are given back their sword s and can either try to fight directly, as in pro se litiga tion, or hire “gladiator”attorneys

to fight for them in courts of law.

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