Judicial Settlement-Seeking in Parenting Cases: A Mock Trial

44 Pages Posted: 30 Jul 2011 Last revised: 7 Dec 2012

See all articles by Noel Semple

Noel Semple

University of Windsor Faculty of Law

Date Written: September 21, 2011

Abstract

Judicial dispute resolution is common in family courts, where it usually consists of informal efforts to bring about settlement in pre-trial conferences. Many judges are especially eager to promote settlement in child custody and visitation cases. This paper will critically evaluate informal JDR in parenting disputes, by asking whether and to what extent it is in the best interests of the children involved. It begins by identifying several features which distinguish custody and access disputes from other types of civil litigation, and which are relevant to the normative analysis of JDR in this context.

The paper then describes and evaluates three arguments which might be made against informal JDR in custody and access. First, one might argue that there is too much settlement and not enough neutral adjudication of civil cases in general, or of parenting cases in particular. Second, one might applaud settlement in these cases but say that the efforts of the justice system to encourage it are ineffectual or inappropriate. Third, one might approve of settlement-seeking by the justice system in custody and access cases, but maintain that the system’s reliance on judges to do this work is mistaken.

The first two arguments can be rejected, but the author argues that the third has substantial merit. This paper will conclude by arguing that facilitative mediation by non-judges appears to have significant advantages over judicial settlement-seeking as a way to resolve custody and access cases without adjudication. Assigning settlement-seeking to facilitative non-judges could revitalize both settlement-seeking and adjudication in family court.

Keywords: Judicial dispute resolution, mediation; settlement, custody and access, parenting disputes

Suggested Citation

Semple, Noel, Judicial Settlement-Seeking in Parenting Cases: A Mock Trial (September 21, 2011). Journal of Dispute Resolution, Vol. 2013, No. 2, 2013, Available at SSRN: https://ssrn.com/abstract=1898629 or http://dx.doi.org/10.2139/ssrn.1898629

Noel Semple (Contact Author)

University of Windsor Faculty of Law ( email )

401 Sunset Ave.
Windsor, Ontario N9B 3P4
Canada

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