It's the Conflict, Stupid: An Empirical Study of Factors that Inhibit Successful Mediation in High-Conflict Custody Cases

Abstract:     
High-conflict custody disputes continue to bedevil the legal profession and the social and behavioral sciences. This empirical study analyzes data from parties in high conflict custody cases in a jurisdiction with mandatory mediation of custody disputes. The study supports the findings of a number of studies in its conclusion that parties reach mediated agreements more quickly than judges produce custody orders and that the mediated agreements are more stable than the litigated orders. Other findings, however, challenge some of the conventional wisdom about the impact of mediation on custody cases. The mediated agreements were not associated with more shared parenting time. To the contrary, the litigated orders resulted simultaneously in more shared parenting time in some and in more lopsided divisions of parenting time in others. On the other hand, the study supported the conventional wisdom that conflict between the parties prevents them from reaching a mediated agreement about custody. Using allegations of domestic violence and unfitness as measures of conflict, those factors were associated with the failure to reach a mediated agreement. The article concludes that mandatory mediation might be cost-effective in a state willing to use a differentiated case management system to exempt those parties whose experience reflects too much conflict for mediation to be worthwhile.

Number of Pages in PDF File: 28

Accepted Paper Series