THE COURT, THE PARENT, AND THE CHILD: MEDIATOR PERCEPTIONS OF THE PURPOSE AND IMPACT OF MANDATED MEDIATION IN CHILD CUSTODY CASES

Abstract

The determination of custody and visitation arrangements for minor children is an event normally accompanying a divorce, and it may also be a part of other proceedings involving the care of minor children. The process for determining child custody and visitation is important to the parents, the children, the courts, and society. Historically, this was a judicial decision in contested cases, and the standards used by courts have varied over time. Mediation, as an adjunct to the court's determination of child custody and visitation, began its rise in popularity in the early seventies. As states moved away from fault-based divorce toward no-fault dissolution of marriage, courts and legislatures embraced mediation as a less divisive way for couples to navigate the often painful process of deciding custody and visitation issues, which marked a shift toward the best interest of the child standard. While mediation has many proponents, it is not without its critics. Criticisms have included concerns about the fairness of the process for women and whether mediation is simply another way to force the parties into a settlement of the issues to save the court time and resources. Because some states have chosen to mandate mediation of child custody and visitation issues, the purposes and efficacy of mediation in child custody and visitation are extremely important and should be carefully examined. There is little quantitative or qualitative research on these issues. This Article describes a qualitative research study that explored mediators' understanding of the purposes of mediation in child custody and visitation in the Tenth Judicial Circuit of Illinois, a state that has recently mandated mediation for these issues.