November 2003

Early Mediation—A Better Mousetrap?

by John E. Dunne, M.D.

History does have a way of repeating itself. In 1983, attorney Bob Prince approached me—I was an eager young child psychiatrist interested in the difficulties divorce imposes on children—to present a CLE program for the King County Bar Association's Marriage and Family Law Section on what was known about joint custody. Mandatory joint custody had just (1980) been made law in California, and, nationally, joint custody had become the solution du jour among progressive thinkers. The first published reports1 were encouraging, documenting a significant drop in relitigation rates. Case studies and documentaries showed how harmoniously two divorced parents could raise children, even infants.
 
However, a review of the psychological research available at the time showed that we really knew very little about the effectiveness of joint custody as a general practice. What studies were available were based on self-selected couples and lacked control groups. In short, there really was no basis for any conclusions, good or bad, about joint custody as a way to adjudicate divorcing couples with children.
 
Twenty years later, Porter Kelley, a former associate of Bob Prince's and another original member of the ad hoc committee that wrote the Parenting Act, approached me about writing this article on early mediation as a better solution to the process of divorce. Currently, court rules require at least one mediation session, usually occurring late in the process. Is there evidence that early mediation might really be better?

A Brief History of Divorce

Changes in law are usually the products of sociological and economic changes rather than anything "scientific." For example, in the agrarian economies that led up to the 20th century, children were considered chattel and owned by the head of the estate. They were a major economic asset in running a farm, and large families were the rule. If the parents did divorce—then a rare occurrence—the wife was evicted with nothing but her clothes, and no rights to see the children. Since women generally had few economic resources and almost no legal rights, when divorce did occur, it was almost always initiated by the husband, usually based on some moral failure of the wife—whether perceived, fabricated, or actual. Writings from the 19th century suggest strong support for the disgraced mother never being allowed any further contact with the children, to avoid moral contamination.
 
With the shift to an urban demographic and an industrial economy, children became a liability. No more chickens to feed, eggs to gather, fences to mend, or gardens to tend. It was not a sudden upsurge of sympathy for the plight of women or even the "tender years doctrine" that created the enormous swing in the disposition of children at the beginning of the 20th century. It was the shifting economic meaning of children that created the mother as primary caretaker.
 
Keeping this concept in mind, we have moved through an extended period of obligatory mother-only custody, followed by various permutations of joint custody, including our own Parenting Act. While there may have been an upsurge in divorce since WWII, this was clearly a better social solution than family abandonment, which had been prevalent prior to WWII.

Research on the Effects of Divorce on Children

Social scientists began to worry about the effects of divorce on children. Early research conceptualized divorce as an event, independent somehow from the family difficulties that led to the decision, as well as from the process within the family that unfolds after the decision to separate. There was no effort to look at families who had similar circumstances but never divorced. When researchers began to factor those considerations into their analyses, the adverse effects of divorce on children nearly, but not completely, disappeared. During the 1970s and 1980s, research focused more on the destructive quality of high versus low levels of expressed conflict within the home.
 
Another line of research at that time focused on family process—i.e., the change in the ways members of the family relate and interact over time. This became a very useful way of looking at families who divorce, and at the most relevant factors that influence outcomes for children. Of course there are many factors that contribute to adverse outcome: parental psychopathology, including substance abuse; significant changes in standards of living; disruptions in the child's social milieu, such as friends, school, and activities; and persistent or increased parental conflict. Some factors tend to be protective: a close, supportive relationship with at least one of the parents; the child's temperament; adequate economic resources; stable residence; a pro-social peer group; an available, caring extended family; and low parental conflict.

The Parenting Act

Much of this was known in 1983 when a small group of us, including Porter Kelley and Bob Prince, set out to reinvent the process of divorce. A guiding principle in our discussions was to reduce parental conflict, to push frightened, angry, hurt, hostile, and distrustful people in the direction of cooperating in the continuing responsibilities of parenting their children. In the hope that there would be less fighting over "custody," we changed that legal basis of children from property to social contract, a contract that is only implied in the case of never-married parents. We also hoped to create a situation that would encourage more fathers to be financially responsible for the welfare of their children. We constructed a rather intricate plan that required both a temporary parenting plan and a permanent one, once all the details had been worked out. To reduce future involvement of the legal system, we required that each plan include a dispute-resolution process. Our proposal evolved into the Parenting Act of 1987.

A Naturalistic Experiment

When the act was signed into law, I persuaded my colleague Wren Hudgins, Ph.D. and a UW statistician, Julia Babcock, Ph.D., to help design and carry out a study of the effectiveness of this approach in helping not only children, but their parents as well, in surviving the turmoil of divorce. We had just enough time in the closing months of 1987, before the new law went into effect, to set up control groups of divorcing couples in both King and Yakima counties. It was a rare opportunity for a naturalistic experiment to test the hypothesis that our new approach to divorce could actually make a difference in the mental health and welfare of post-divorce families.
 
The study involved contacting both members of 400 divorcing couples and having them complete a questionnaire about themselves and their children. We had the expected poor rate of return, with only a bit more than 25 percent responding to the first questionnaire and, of those, only half responding when we contacted them two years later for follow-up. Fortunately, we had a large enough sample and a strong enough statistical approach for the results to be considered valid.
 
Our study was published in 2000.2 Some of our findings are relevant to this discussion. As you will recall, we believed that by applying the best available concepts, we could improve the mental health of the children and perhaps of the parents, too. However, there was no change in the emotional or behavioral indices for the children, either during the separation phase or at follow-up two years later. This finding seems to support Mavis Heatherington's conclusion3 that children tend to be resilient. Parents, particularly fathers, fared worse. Fathers had much more difficulty with "internalizing problems" (depression, anxiety, and social withdrawal). There was also a trend for both mothers and fathers to have more "externalizing problems" (irritability, work problems, and parenting problems) with the new law. Significantly, the most powerful correlation with poor outcome related to degree of discomfort with their former spouse and the degree of stress at the time of filing.
 
The new law, which was considerably more complicated than the no-fault, joint-custody-permitted divorce law it replaced, may have contributed to the degree of stress at the time of filing. Poor payment history contributed to internalizing problems and total problems at follow-up, regardless of which law governed the divorce. When the usefulness of the Parenting Plan (PP) was analyzed separately from the effect of the law, those who indicated that creating a PP was helpful had significantly fewer internalizing and total problems. However, those who were the most uncomfortable with their estranged spouse and/or who were the most stressed at the time of filing may also have been the ones who felt that writing a PP was not helpful.

Unintended Effects

One thing that has really impressed me is that the act essentially required couples to get divorced twice, first in the struggle over agreeing on the temporary PP, then again with the more extended struggle working out the permanent PP. Not only does this extract a price emotionally, but it is terribly expensive, more frequently requiring the assistance of attorneys. Although hardly a very definitive survey, the amount of paper in a typical divorce-evaluation case that crosses my desk has at least quadrupled since the act went into effect. Despite several challenges over the intervening 16 years, a more appealing approach to regulate the process of divorce has not caught the fancy of the Legislature. According to the social research of Diane Lye, Ph.D.,4 everyone involved, from judges to divorcing parties, is generally pleased with the act. Is early mediation really a better approach?

Mediation Research

When it comes to understanding the real value of early mediation when applied broadly as a social policy, we are only somewhat better off than we were in 1983 when trying to understand joint custody. Research on the process of mediation and its effectiveness during divorce has been steady, if not very intensive, since at least the late 1970s. In a review of the current literature, Mackay and Brown5 described the multiple methodological flaws of the research, especially that the process of the mediation was generally drawn from notes of the mediator rather than a nonparticipating research associate, leaving the interpretation of results open to substantial bias error.
 
Despite these methodological problems, it appears that mediation does reduce the number of court hearings, increases the detail in settlement decrees, decreases relitigation, and increases compliance with the agreement.6 However, Thoennes and Pearson7 concluded that the success of mediation was related to the ability of the mediator more than the nature of the dispute or of the disputants. This seems to contrast with the observation that between 15 and 25 percent of divorcing couples are in high conflict and may not be suitable for mediation. Cohen8 stressed that mandatory mediation was not suitable for some divorcing couples for a variety of reasons, such as not being motivated by the best interests of the child, but viewing custody and visitation as a bargaining chip to gain a more favorable outcome for themselves. Nonetheless, as many as 75 percent of those divorcing should be able to benefit from mediation, if enough skilled and experienced mediators were available.

Is This Even Possible?

Our research suggests that the initial process of posturing for the temporary parenting plan through declarations and affidavits inflicts emotional wounds that create distrust and animosity that would interfere with the process of mediation. To be most successful, mediation should begin before any documents are filed. Both parties would need to be strongly encouraged to participate in early mediation by their attorneys before firing off opening salvoes. Given the limitations I have outlined, early mediation does appear to be a promising approach that may significantly improve outcomes for a large proportion of divorcing couples. However, is our litigious society ready for such a benign solution?

John E. Dunne, M.D., is a psychiatrist in Renton.

NOTES
1. F.W. Ilfeld Jr., H.Z. Ilfeld, and J.R. Alexander: "Does joint custody work? A first look at outcome data of relitigation." J. AM. ACAD. CHILD & ADOLESC. PSYCHIATRY (1982); 21:62-66.
2. J.E. Dunne, E.W. Hudgins, and J. Babcock: "Can changing the divorce law affect post-divorce adjustment?" J. DIV. REMARRIAGE (2000); 33:35-54.
3. E.M. Heatherington and J. Kelly: For Better or for Worse: Divorce Reconsidered (2002).
4. D.N. Lye: "Washington State Parenting Act Study" (1999), Washington State Gender and Justice Commission.
5. R.E. Mackay and A.J. Brown: "Community mediation in Scotland. A study of implementation" (1998), The Scottish Office Central Research Unit.
6. R E. Emory: Renegotiating Family Relationships: Divorce, Child Custody and Mediation (1994).
7. N.A. Thoennes and J. Pearson: "Predicting outcomes in divorce mediation: The influence of people and process." J. OF SOCIAL ISSUES (1985); 41:115-126.
8. I. Cohen: "Mandatory mediation: A rose by any other name." MEDIATION QUART. (1991); 9:33-46.

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