The Problem with Fairness in Family Law

Two. The Problem with Fairness in Family Law

Custody mediation under the California system provides neither a more just nor a more humane alternative to the adversarial system of adjudication of custody, and, therefore, does not fulfill its promises. In particular, mandatory mediation can be destructive to many women and some men because it requires them to speak in a setting they have not chosen and often imposes a rigid orthodoxy as to how they should speak, make decisions, and be. This orthodoxy is imposed through subtle and not-so-subtle messages about appropriate conduct and about what may be said in mediation. It is an orthodoxy that often excludes the possibility of the parties speaking with their authentic voices.

Three. Mandatory Mediation and the Dangers of Forced Engagement

Emma has been in a marriage which in its early years seemed to be a good one for both Emma and her husband. She has been the primary caretaker of the children, and she is very committed to them. She has lived much of her life through her husband and her children, and has not worked outside her home. Increasingly, however, she has begun to feel that she and her husband have grown apart, and that he does not see her as a person but rather as a repository of various roles. After much agony, she has decided to end her marriage. Her departure from the marriage is a first step toward seeing her life as having separate dimensions from her husband's and children's, but her right to individuation does not seem clear to her; in fact, there are many times when it seems selfish and wrong. It is hard for her even to find the language to describe what is propelling her to turn her life, and her children's lives, upside down, but propelling she is. The marital separation was an early step toward defining her own physical and psychological boundaries. She now finds herself, however, feeling guilty, frightened, and unsure of how she will survive in the world alone.

Joan has been in a marriage in which she has been physically abused for ten years. She and her husband David have two children, whom David has never abused. She is afraid, however, that if she leaves David, he will begin to abuse the children whenever he is caring for them. Joan has been afraid to leave her marriage because David has threatened to harm her if she does so. When she separated briefly from him previously, he followed her and continually harassed her. Each time David beats Joan he shows great remorse afterwards and promises never to do it again. He is a man of considerable charm, and she has often believed him on these occasions. Nonetheless, Joan has finally decided to leave her husband. She is worried about what will happen, economically and physically, to her children and herself.

It might be that mediation would help Emma's family disengage and discover ways of relating to one another. Mediation could be useful, even transformative, during the divorce process. Significant possibilities of damage to Emma also exist, however. For example, she might find herself traumatized by a forced engagement with her husband. Or, in the intimate mediation setting, she might find it difficult to withstand criticism of how she is conducting herself in life or in the mediation.

For Joan, the direct confrontation with her husband, with the safety of her children and herself at stake, would surely be psychologically traumatizing and might also put her in physical danger. Because of these possibilities, the chance-even the substantial one-of a beneficial result cannot justify the sort of intrusion by the state that occurs when mediation is mandatory.

While some of mandatory mediation's dangers affect men and women equally, others fall disproportionately on women. A study that compared people who chose to mediate with those who rejected the opportunity found that forty-four percent of the reasons given by women who rejected mediation services offered to them center around their mistrust of, fear of, or desire to avoid their ex-spouse. In contrast, those men who rejected mediation appeared to do so because they were skeptical of the mediation process or convinced they could win in court. Thus, the requirement of mandatory mediation that the parties meet personally with one another, usually without a lawyer present, presents troubling issues for women. Feminist analyses, looked at alone and together, clarify why this is so.