NCJ Number
95308
Journal
Family Law Quarterly Volume: 17 Issue: 4 Dated: (Winter 1984) Pages: 469-495
Date Published
1984
Length
27 pages
Annotation
This brief overview of alternatives to court-imposed decisions in child custody cases examines the advantages and disadvantages of structured and comprehensive mediation and the roles of lawyer-mediators and mental health professional mediators.
Abstract
In contrast to structured mediation, comprehensive mediation is not based on elaborate rules, nor does it involve the signing of a contract which sets out a specific number of sessions in which a settlement must be reached before the issue must be submitted to arbitration. In addition, comprehensive mediation does not require all joint mediation sessions. It allows individual meetings with the mediator in order to avoid some of the bitterness and inhibition often found in dissolving marriages. Each party hires an individual attorney, and there is no advisory attorney. Advantages to using lawyer-mediators include the confidentiality of the traditional attorney-client relationship, the lawyer's knowledge of the law, and the benefit of past experience with the traditional adversary process to developing suitable agreements. One of the biggest disadvantages is the risk of possible ethics code violations, malpractice liability, the risk of exploiting one party at the expense of the other, and adding another tier to the divorce process by requiring parties to consult independent counsel in addition to mediation. While mental health professional mediators' expertise in dealing with emotional situations from a nonadversarial position is advantageous, they run the risk of being accused of the unauthorized practice of law. In addition, mental health professionals often lack the background to understand the legal ramifications of decisions made by couples when resolving custody, property, and support issues. They also lack the traditional client confidentiality privilege. Interdisciplinary comediation teams seem the best solution, the lawyer's risk of ethical violations over improperly practicing law with a nonlawyer or splitting fees with a nonlawyer. A total of 104 footnotes are provided.